Study Visit of NDRC, DRC and SAIC at

the Bundeskartellamt

Leniency
L
i
P
Programmes
and
d
their Application
pp
Bonn, Germany
22 10 2011
22.10.2011
Sabine Zigelski
Bundeskartellamt
Rapporteur

I The Bundeskartellamt
I.
2

Independent authority with competencies in:

Merger Control
Abuse of Dominance
Cartel Prosecution
Legal basis: Act Against Restraints of
Competition (ARC)
Staff: 330 app. 120 lawyers and economists

I The Bundeskartellamt
I.
3

The Decision Divisions:

Specialised Units for Cartel Prosecution: B 10, B 11 and B 12

Specialised
p
Unit for Combating
g Cartels

II Cartel Prosecution
II.
4

Legal Basis:
1 ARC/Art
ARC/Art. 101 TFEU Prohibition of
Cartels
81 ARC Provisions on Fines
Law on Administrative Offences
Rules of Criminal Law
Fines of up to 10 % of the aggregate annual
turnover of the undertakings involved
(including the group of undertakings) can be
imposed

III Cartel Detection

III.
5

Cartel Prosecution since 1958

Market observations by customers

Observations of competition authority in other

p
proceedings
g

Anonymous informants which are close to the

cartels

Systematic market analysis

Honest businessmen
Leniency Programme since 2000, revised in

2006

IV Statistics on Leniency
IV.
6

Number of leniency applications filed since 2000:

2000 2005: 122

2006 2010: 166

Current No. 2011: 30

IV Statistics on Leniency
IV.
7

Cartel fines since

2000:

IV Statistics on Leniency
IV.
8

Exemplary fines
sums in various
industry sectors:

-Cement
- Industrial
d
l Insurance
- Liquefied Petroleum
Gas
- Clay Roof Tiles
- Dcor Paper
-Coffee
Co ee
- Optic Lenses

V The Leniency Programme

V.
9

Objective and Scope:

Cartel participants who contribute to uncovering a

cartel and cooperate during the whole proceeding
with the Bundeskartellamt can be granted

Immunity or
Reduction of fines

Applies
A
li to naturall persons, undertakings
d
ki
and
d
associations of undertakings
The programme sets the conditions under which
immunity or reduction of fines can be granted

V The Leniency Programme

V.
10

Immunity from fines:

for cartel participants who inform the

Bundeskartellamt before it is able to obtain a
search warrant

for cartel participants who inform the

Bundeskartellamt before a dawn raid and

who provide all necessary information and evidence to

obtain a search warrant

who provide all necessary information and evidence to

prove the offence

continous and full cooperation

informant was not the ringleader nor the coercer

V The Leniency Programme

V.
11

Reduction of fines:

if immunity can not be granted anymore (mostly

after a dawn raid/second informant), fines can be
reduced by up to 50 % if

applicant provides Bundeskartellamt with verbal or

written information and evidence which make a
significant contribution to proving the offence and
cooperates fully and on an continous basis with the
Bundeskartellamt

Amount of reduction depends on value of

contribution and the sequence of applications

V The Leniency Programme

V.
12

Cooperation requirements:

fully and continously during the entire duration of

the proceedings

including
g all employees
p y
involved + former
employees

involvement in the cartel has to be stopped

i
immediately
di
l on request by
b Bundeskartellamt
d k
ll

obligation to keep cooperation confidential

(internally and externally) until Bundeskartellamt
relieves from obligation

V The Leniency Programme

V.
13

Procedure:

status of 1st, 2nd, 3rd... is defined by the date and

time when a marker has been placed

contact with Special Unit for Combating Cartels or the

chairman of a decision division
verbally or in writing, in German or English
rough
o gh sketch of the basic facts type
t pe and duration
d ation of
infringement, product and region,
undertakings/persons involved, other competition
authorities involved
comprehensive application for leniency has to be
filed within eight weeks

V The Leniency Programme

V.
14

Procedure ctn`d:

application must contain all information to either

justify a search warrant or to prove the offence

provisions for p
p
parallel applications
pp
in Germany
y and
with the European Commission

application on behalf of an undertaking is deemed

to cover all
ll employees
l
off the
h undertaking
d
ki

if applicant does not fulfil obligations, status of

priority lapses and subsequent applicants move up
in rank

V The Leniency Programme

V.
15

Obligations of the Bundeskartellamt:

immediate confirmation of date and time of

marker/application

in cases of immunity:
y applicant
pp
gets assurance in
g
writing that immunity will be granted

in cases of reduction: information in writing about

the
h rank
k

final decision on immunity or reduction only after

examination of all information and evidence
obtained during the proceedings

V The Leniency Programme

V.
16

Confidentiality:

identity of applicant will be kept secret (within

the statutory limits and requirements) up to the
point where a statement of objections is issued

Bundeskartellamt promises to protect applicant

from private third parties applications for file
inspection but: Case C-360/09 Pfleiderer, Judgement of
the Court of Justice of 14 June 2011

No effect on private enforcement of competition

law
In cases of criminal offences by natural persons
(bid rigging) referral to public prosecutor

VI Reasons for Success

VI.
17

Bundeskartellamt is a credible and reliable

partner
Great efforts to protect identities of
leniency applicants
Significant reductions in fines/no fines at all
have been obtained
=> It pays off to cooperate with the
Bundeskartellamt instead off continuing a
cartel!

VII Challenges and Prospects

VII.
18

Resources adapted to no. of filings?

backlogs and priority setting

Influence of increasing private damages
actions protection of leniency applicants
vs. justified compensation claims
Further intensification of international
cooperation within the EU and abroad

VIII. European Leniency

Programmes
19

2006 ECN Model Leniency Programme http://ec.europa.eu/competition/ecn/model_lenien

cy_en.pdf
2006 Commission notice on immunity from fines
and
d reduction
d
off fines
f
in cartell cases - http://eurh
//
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:
2006:298:0017:0022:EN:PDF
List of European authorities:
http://ec europa eu/competition/ecn/leniency prog
http://ec.europa.eu/competition/ecn/leniency_prog
ramme_nca.pdf

IX. Leniency Programmes Around

the World
20

UNCTAD: The use of leniency programmes as a tool

for the enforcement of competition law against

hardcore cartels in developing countries http://www.unctad.org/en/docs/tdrbpconf7d4_en.pd
f
ICN: Drafting and implementing an effective
leniency policy http://www.internationalcompetitionnetwork.org/upl
oads/library/doc341.pdf
/
y/
p

Questions?
21

Thank you for

your attention!

Sabine Zigelski
Bundeskartellamt
sabine.zigelski@bundeskartellamt.bund.de
phone: 0049 228 9499 298