Last Updated June 13, 2019

Law and Practice

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Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

The rules of the Dutch leniency programme have been laid down in the Policy Rule of the Minister of Economic Affairs of 4 July 2014, No WJZ/14112586, on the reduction of fines in connection with cartels (Leniency Policy Rule). The Policy Rule does not protect the company from private enforcement actions by third parties.

The leniency programme only applies to ‘cartels’, ie, an agreement or concerted practice between two or more competitors with the objective of impeding competition, in violation of Article 101 of the TFEU or Article 6 of the Act.

Immunity

The ACM grants immunity from fines to the first leniency applicant to submit a request for immunity from fines with regard to a cartel, if the application concerns a cartel into which the ACM has not yet launched an investigation and the applicant provides information that enables the ACM to perform a targeted inspection. No immunity will be granted if the applicant has coerced another undertaking into participating in the cartel. Furthermore, the applicant is obliged to co-operate with the authority, which means that the applicant refrains from any action that may impede the investigation or the proceedings until the decision to impose an administrative fine becomes final with respect to all practices involved in the cartel. The applicant is also obliged to provide the ACM with all information regarding the cartel that they have or may reasonably obtain, of their own accord or at the ACM’s request, as soon as possible, and to ensure that individuals who are working for the applicant and, insofar as is reasonably possible, individuals who have worked for the applicant are available for making statements. The company must cease any involvement in the cartel after submission of the leniency application, unless and insofar as the ACM considers the continuation thereof to be reasonably necessary in order to preserve the effectiveness of inspections.

The ACM also grants immunity from fines to a leniency applicant if the above-mentioned conditions have been met and the application concerns a cartel into which the ACM has already launched an investigation but not yet sent a statement of objections to any of the parties involved. This immunity will only be granted, however, if the application provides the ACM with documents that stem from the period of the practice in question that were not already in the ACM’s possession, and on the basis of which the ACM is able to prove the existence of the cartel.

A company or individual considering applying for leniency may contact the ACM to exchange ideas about a body of facts and the applicability of the leniency policy in that context. This may take place anonymously or through a lawyer and may concern a hypothetical set of facts. A prospective leniency applicant may also inquire with the ACM by telephone, but solely through a lawyer, as to whether immunity from fines (the position of the first-in-the-door whistle-blower) is still available. If the ACM responds positively to the inquiry, the lawyer is required to submit an application for immunity from fines immediately.

A leniency application includes a written leniency statement with the following information, insofar as is known to the applicant at the time of submission:

  • a statement that the applicant will comply with all applicable leniency conditions under this policy rule;
  • a statement that the applicant has participated in the alleged cartel as claimed by the applicant, if the applicant is an undertaking;
  • a supported statement that the leniency applicant is a natural person within the meaning of Section 51, paragraph 2, sub 2 of the Dutch Criminal Code, who has given instructions or has exercised de facto leadership with regard to the participation of an undertaking in the cartel, if the applicant is a natural person;
  • a detailed description of the cartel arrangement, including the products or services involved, the geographical scope, the duration, the functioning of the cartel and the estimated market volumes or sales affected by the cartel, as well as the specific dates, locations, contents of and participants in the cartel interactions;
  • the name and address of the leniency applicant;
  • the names and addresses of all the undertakings that participate or have participated in the cartel, as well as the names, positions, working locations and, where relevant, home addresses of the individuals who are or who have been involved in the cartel;
  • information on whether the leniency applicant has approached or may approach the European Commission in relation to the cartel; and
  • where applicable, which other competition authorities the applicant has approached or may approach in relation to the cartel.

A leniency application also contains evidence corroborating the statements, insofar as the applicant has such evidence or such evidence is reasonably available to the applicant at the time of the submission of the application. The leniency statement contains an explanation of the evidence.

A natural person who submits a leniency application may be eligible for the same immunity or reduction of a fine as the undertaking at which he or she works, if he or she declares that he or she wishes to be considered a leniency co-applicant with the undertaking, and he or she meets the conditions for immunity from fines on his or her own.

With the ACM’s permission, a leniency statement may be submitted orally, if the ACM believes that the leniency applicant has a legitimate interest in doing so. In such cases, the ACM records the oral statement and draws up a transcript

The ACM does not disclose the identity of the leniency applicant to third parties until the statement of objections has been issued to anyone involved in the cartel, unless the leniency applicant has consented to disclosure.

In accordance with Article 12 of EU Regulation 1/2003, the ACM only forwards a leniency statement to another competition authority or to the European Commission if:

  • the conditions of the Commission Notice on co-operation within the Network of Competition Authorities (OJ, 2004, C 101) are satisfied; and
  • the protection against disclosure provided by the receiving competition authority or the European Commission is equivalent to that offered by the ACM.

Markers

A leniency applicant who submits an incomplete leniency application may be eligible for a marker if the ACM believes the application offers a concrete basis for reasonable suspicion of the applicant’s involvement in a cartel, and the leniency applicant provides information on at least the name and address of the leniency applicant, the cartel participants, the affected products or services, the cartel’s geographical scope, the cartel’s duration, the nature of the cartel’s practices and whether the leniency applicant has approached or may approach the European Commission with regard to the cartel. The duration of the marker will be set by the leniency officer and depends on how long the applicant reasonably needs to complete its application. As soon as a complete application has been submitted within the time limit the leniency officer has set for it, the marker will turn into a proper leniency application.

Reduction of Fines

The ACM grants a leniency applicant a reduction of at least 30% and no more than 50% on a fine if immunity from fines is no longer available because the applicant is not the 'first in the door' and the ACM has not yet sent a statement of objections. In order to qualify for reduction, the applicant must be the first to submit an application that contains information with significant added value, and complies with the obligation to co-operate. The second company that submits an application for reduction of a fine can get a reduction of 20-30%; subsequent applicants can get a reduction of up to 20%.

Lastly, the ACM does not keep an official public record of granting leniency, nor publishes it in its annual reports. However, in each decision in which it imposes fines, the ACM will publish the extent to which it applied leniency.

Nysingh Advocaten–Notarissen N.V

Burg. Roelenweg 11
8021 EV Zwolle

+31 (0)88 752 00 00

info@nysingh.nl www.nysingh.nl
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Authors



Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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