Brussels, 20/01/2016 (Agence Europe) - In the field of competition, leniency programmes of the EU and of the member states coexist autonomously, ruled the Court of Justice of the EU in a judgment (case C-428/14) delivered on Wednesday 20 January.
The Consiglio di Stato (Council of State, Italy) asked the Court of Justice to interpret EU law concerning the relationships between the various procedures coexisting within the cooperation mechanism between the European Commission and national competition authorities, known as the “European Competition Network” (ECN). This network seeks to ensure the coherent application of the competition rules in the member states.
This case related to leniency programmes which encourage companies to reveal the existence of cartels in which they themselves have participated in return for immunity from fines. The ECN adopted a model programme which allows the member states to develop their own national leniency programmes.
In 2011, the Italian competition authority, the AGCM, which had adopted its leniency programme, found that several undertakings, including DHL, Schenker and Agility, had participated in a cartel in the international road freight forwarding sector affecting operations to and from Italy. The AGCM imposed penalties on the companies but granted Schenker immunity since that company had been the first to allege that EU competition law had been infringed.
DHL submitted an application for leniency to the Commission, within the framework of the same cartel, before Schenker made its application to the AGCM. DHL, therefore, brought an action before the Italian courts for annulment of the AGCM's decision, arguing that the AGCM should have taken into account the leniency application submitted to the Commission.
In its decision, the Court of Justice ruled against DHL. It said that there is no legal link between an application for immunity submitted to the European Commission and a similar application submitted to a national competition authority in respect of the same cartel. The national authority is not required to take account of a leniency application submitted to the Commission nor is it required to contact the Commission in order to obtain information on the purpose and results of the leniency procedure carried out at the European level.
Following this logic, the Court also said that national law must allow the possibility for a company to submit a summary application for (full) immunity to the national competition authorities even though that company was not the first to submit an application for immunity to the Commission (in which case it is eligible, before the Commission, only for a reduction of the fine and not full immunity). (Original version in French by Jan Kordys)