Commission notice on immunity from fines and reduction of fines in cartel cases (Text with EEA relevance)
Date: 2002-02-19
Institutions: European Commission
Subjects: competition law, fine, infringement of EU law, inter-company agreement

19.2.2002

EN

Official Journal of the European Communities

C 45/3

Commission notice on immunity from fines and reduction of fines in cartel cases

(2002/C 45/03)

(Text with EEA relevance)

INTRODUCTION

1. This notice concerns secret cartels between two or more
competitors aimed at fixing prices, production or sales
quotas, sharing markets including bid-rigging or restricting
imports or exports. Such practices are among the most
serious restrictions of competition encountered by the
Commission and ultimately result in increased prices and
consumer. They also harm
reduced choice
European industry.

the

for

2. By

the

limiting

artificially

competition that would
avoid
normally prevail between them, undertakings
exactly those pressures that lead them to innovate, both
in terms of product development and the introduction of
more efficient production methods. Such practices also
lead to more expensive raw materials and components
for the Community companies that purchase from such
producers. In the long term, they lead to a loss of competi-
tiveness and reduced employment opportunities.

3. The Commission is aware that certain undertakings
involved in this type of illegal agreements are willing to
put an end to their participation and inform it of the
existence of such agreements, but are dissuaded from
doing so by the high fines to which they are potentially
exposed. In order to clarify its position in this type of
the Commission adopted a notice on the
situation,
fines in cartel cases (1),
non-imposition or reduction of
hereafter (cid:145)the 1996 notice(cid:146).

to grant

4. The Commission considered that it is in the Community
interest
to undertakings
favourable treatment
which cooperate with it. The interests of consumers and
citizens in ensuring that secret cartels are detected and
in fining those under-
punished outweigh the interest
takings
and
that
prohibit such practices.

the Commission to detect

enable

implementation,

5. In the 1996 notice, the Commission announced that it
would examine whether it was necessary to modify the
notice once it had acquired sufficient experience in
applying it. After
the
five years of
Commission has the experience necessary to modify its
policy in this matter. Whilst the validity of the principles
governing the notice has been confirmed, experience has
its effectiveness would be improved by an
shown that
increase
the
fines will be
conditions on which any reduction of
level of
granted. A closer
reduction of
company’s
fines
contribution to establishing the infringement could also
increase this effectiveness. This notice addresses these
issues.

alignment between the
and the value of

and certainty of

transparency

in the

a

(1) OJ C 207, 18.7.1996, p. 4.

6. The Commission considers that the collaboration of an
undertaking in the detection of the existence of a cartel
has an intrinsic value. A decisive contribution to the
to the finding of an
opening of an investigation or
infringement may justify the granting of immunity from
any fine to the undertaking in question, on condition that
certain additional requirements are fulfilled.

7. Moreover, cooperation by one or more undertakings may
justify a reduction of a fine by the Commission. Any
reduction of a fine must reflect an undertaking’s actual
to the
contribution,
infringement.
Commission’s
Reductions are to be limited to those undertakings that
provide
adds
significant value to that already in the Commission’s
possession.

the Commission with evidence

in terms of quality and timing,

establishment

that

the

of

A. IMMUNITY FROM FINES

8. The Commission will grant an undertaking immunity from
any fine which would otherwise have been imposed if:

(a) the undertaking is the first to submit evidence which
in the Commission’s view may enable it to adopt a
decision to carry out an investigation in the sense of
Article 14(3) of Regulation No 17 (2)
in connection
with an alleged cartel affecting the Community; or

(b) the undertaking is the first to submit evidence which
in the Commission’s view may enable it to find an
infringement of Article 81 EC (3) in connection with
an alleged cartel affecting the Community.

9. Immunity pursuant to point 8(a) will only be granted on
the condition that the Commission did not have, at the
time of
the submission, sufficient evidence to adopt a
decision to carry out an investigation in the sense of
Article 14(3) of Regulation No 17 in connection with
the alleged cartel.

10.

Immunity pursuant to point 8(b) will only be granted on
the cumulative conditions that the Commission did not
have, at the time of the submission, sufficient evidence
to find an infringement of Article 81 EC in connection
with the alleged cartel and that no undertaking had been
granted conditional immunity from fines under point 8(a)
in connection with the alleged cartel.

(2) OJ 13, 21.2.1962, p. 204/62. (Or the equivalent procedural regu-
the
lations: Article 21(3) of Regulation (EEC) No 1017/68 of
Council; Article 18(3) of Council Regulation (EEC) No 4056/86
and Article 11(3) of Council Regulation (EEC) No 3975/87).

(3) Reference in this text to Article 81 EC also covers Article 53 EEA
when applied by the Commission according to the rules laid down
in Article 56 of the EEA Agreement.

C 45/4

EN

Official Journal of the European Communities

19.2.2002

11.

In addition to the conditions set out in points 8(a) and 9
or in points 8(b) and 10, as appropriate, the following
cumulative conditions must be met
in any case to
qualify for any immunity from a fine:

it meets the conditions set out in points 8(a) or 8(b), as
appropriate,
the undertaking conditional
immunity from fines in writing.

it will grant

expeditiously

(a) the undertaking cooperates fully, on a continuous basis
and
the Commission’s
throughout
administrative procedure and provides the Commission
with all evidence that comes into its possession or is
available to it relating to the suspected infringement. In
particular, it remains at the Commission’s disposal to
answer swiftly any request that may contribute to the
establishment of the facts concerned;

(b) the undertaking ends its involvement in the suspected
infringement no later than the time at which it submits
evidence under points 8(a) or 8(b), as appropriate;

(c)

the undertaking did not take steps to coerce other
undertakings to participate in the infringement.

PROCEDURE

12. An undertaking wishing to apply for immunity from fines
should contact the Commission’s Directorate-General for
Competition.
the
it become
requirements set out in points 8 to 10, as appropriate,
are not met,
immediately be
the undertaking will
informed that immunity from fines is not available for
the suspected infringement.

apparent

Should

that

13.

immunity from fines

If
infringement,
conditions 8(a) or 8(b), as appropriate:

the undertaking may,

is available for a suspected
to meet
in order

(a)

immediately provide the Commission with all
to the
evidence
available to it at the time of the submission; or

the
suspected infringement

relating

16. Alternatively, the Commission will verify that the nature
and content of the evidence described in the list referred to
in point 13(b) will meet the conditions set out in points
8(a) or 8(b), as appropriate, and inform the undertaking
accordingly. Following the disclosure of the evidence no
later than on the date agreed and having verified that it
the
corresponds
Commission will
conditional
immunity from fines in writing.

to the description made in the list,

the undertaking

grant

17. An undertaking which fails to meet the conditions set out
in points 8(a) or 8(b), as appropriate, may withdraw the
immunity
evidence disclosed for
application or
it
request
under section B of this notice. This does not prevent the
Commission from using its normal powers of investigation
in order to obtain the information.

the purposes of
the Commission to consider

its

18. The Commission will not consider other applications for
immunity from fines before it has taken a position on an
existing application in relation to the same suspected
infringement.

19.

If at the end of the administrative procedure, the under-
taking has met the conditions set out in point 11, the
Commission will grant
immunity from fines in the
relevant decision.

it

B. REDUCTION OF A FINE

20. Undertakings

the conditions under
that do not meet
from a
section A above may be eligible to benefit
reduction of any fine that would otherwise have been
imposed.

(b) initially present this evidence in hypothetical terms, in
which case the undertaking must present a descriptive
list of the evidence it proposes to disclose at a later
agreed date. This list should accurately reflect
the
nature and content of the evidence, whilst safeguarding
the hypothetical nature of its disclosure. Expurgated
copies of documents, from which sensitive parts have
been removed, may be used to illustrate the nature and
content of the evidence.

21.

In order to qualify, an undertaking must provide the
Commission with evidence of the suspected infringement
which represents significant added value with respect to
the evidence already in the Commission’s possession and
suspected
involvement
must
infringement no later than the time at which it submits
the evidence.

terminate

the

its

in

14. The Directorate-General

for Competition will provide a
written acknowledgement of the undertaking’s application
for immunity from fines, confirming the date on which the
undertaking either submitted evidence under 13(a) or
presented to the Commission the descriptive list referred
to in 13(b).

15. Once the Commission has received the evidence submitted
by the undertaking under point 13(a) and has verified that

in question.

22. The concept of (cid:145)added value(cid:146) refers to the extent to which
the evidence provided strengthens, by its very nature
the Commission’s ability to
and/or its level of detail,
prove the facts
the
In this assessment,
Commission will generally consider written evidence orig-
inating from the period of time to which the facts pertain
to have a greater value than evidence subsequently estab-
lished. Similarly, evidence directly relevant to the facts in
question will generally be considered to have a greater
value than that with only indirect relevance.

19.2.2002

EN

Official Journal of the European Communities

C 45/5

23. The Commission will determine in any final decision
adopted at the end of the administrative procedure:

(a) whether

the evidence provided by an undertaking
to
represented significant added value with respect
the evidence in the Commission’s possession at that
same time;

(b) the level of reduction an undertaking will benefit from,
relative to the fine which would otherwise have been
imposed, as follows. For the:

26. If the Commission comes to the preliminary conclusion
that the evidence submitted by the undertaking constitutes
added value within the meaning of point 22, it will inform
the undertaking in writing, no later than the date on
its
which a statement of objections
intention to apply a reduction of a fine within a
specified band as provided in point 23(b).

is notified, of

27. The Commission will evaluate the final position of each
undertaking which filed an application for a reduction of a
fine at the end of the administrative procedure in any
decision adopted.

(cid:151) first undertaking to meet point 21: a reduction of

30-50 %,

(cid:151) second undertaking to meet point 21: a reduction

of 20-30 %,

(cid:151) subsequent undertakings that meet point 21: a

reduction of up to 20 %.

In order to determine the level of reduction within
each of these bands, the Commission will take into
account the time at which the evidence fulfilling the
condition in point 21 was submitted and the extent to
which it represents added value. It may also take into
account the extent and continuity of any cooperation
provided by the undertaking following the date of its
submission.

In addition,
if an undertaking provides evidence
the
previously
to
relating
facts
Commission which have a direct bearing on the
the
the suspected cartel,
gravity or duration of
Commission will not
into
elements
take
account when setting any fine to be imposed on the
undertaking which provided this evidence.

unknown

these

to

PROCEDURE

24. An undertaking wishing to benefit from a reduction of a
fine should provide the Commission with evidence of the
cartel in question.

25. The undertaking will

from the Directorate-General

receive an acknowledgement of
receipt
for Competition
recording the date on which the relevant evidence was
submitted. The Commission will not
any
submissions of evidence by an applicant for a reduction
of a fine before it has taken a position on any existing
application for a conditional
immunity from fines in
relation to the same suspected infringement.

consider

GENERAL CONSIDERATIONS

all

for

cases

28. From 14 February 2002, this notice replaces the 1996
notice
in which no undertaking has
contacted the Commission in order to take advantage of
in that notice. The
the favourable treatment
it
Commission will examine whether
is necessary to
modify this notice once
acquired sufficient
it has
experience in applying it.

set out

29. The Commission is aware that

this notice will create
legitimate expectations on which undertakings may rely
when disclosing the
to the
Commission.

existence of

cartel

a

30. Failure to meet any of the requirements set out in sections
A or B, as the case may be, at any stage of the adminis-
trative procedure may result in the loss of any favourable
treatment set out therein.

31.

In line with the Commission’s practice, the fact that an
undertaking cooperated with the Commission during its
administrative procedure will be
in any
decision, so as to explain the reason for the immunity
or
immunity or
the fine. The fact
reduction in respect of fines is granted cannot protect an
undertaking from the civil law consequences of its partici-
pation in an infringement of Article 81 EC.

reduction of

indicated

that

32. The Commission considers that normally disclosure, at any
time, of documents received in the context of this notice
would undermine the protection of
the purpose of
inspections and investigations within the meaning of
Article 4(2) of Regulation (EC) No 1049/2001 of
the
European Parliament and of the Council.

33. Any written statement made vis-(cid:224)-vis the Commission in
relation to this notice, forms part of the Commission’s file.
It may not be disclosed or used for any other purpose than
the enforcement of Article 81 EC.