On 15 April 2014, the French Competition Authority (FCA) published a study summarising comments it received on its leniency programme. The Authority received feedback from approximately 40 to 50 lawyers and undertakings.
Overall, both lawyers and undertakings approve the leniency programme, although undertakings find the reduction of their fine to be insufficient and consider the investment cost linked to the leniency application to be high. Lawyers equally criticise the length of the procedure and the legal uncertainty in the programme.
More specifically, undertakings and lawyers agree that the most important reasons to seek leniency are (i) the reduction of the fine, (ii) an earlier application for leniency before another competition authority, and (iii) inspections. Undertakings point out that (i) the cumbersomeness of the procedure, (ii) criminal prosecution, and (iii) civil actions are the most significant deterrents for leniency.
A major practical difficulty encountered by leniency applicants appears to be the collection of information necessary to complete the application. The obligation to put an end to the anti-competitive behaviour can create additional difficulties. Lawyers point out that obtaining the cooperation of former employees can be challenging, as is the necessity to conceal the company's plan to seek leniency while carrying out interviews with the individuals who participated in the cartel.
While some lawyers identify the risk of civil lawsuits as a factor in the decision-making process for an application for leniency, undertakings unanimously appear to consider that damage actions are not a real threat.
In addition, the vast majority of undertakings and lawyers consider that an undertaking which has not been inspected but is later drawn into the procedure is discriminated against with respect to the ability to apply for leniency as compared to an undertaking that has been inspected. It is argued that this problem could be solved by publicising the inspections via FCA press-releases immediately after the inspections, as the European Commission does.
Finally, while leniency applicants consider that their situation following a procedure based on leniency is broadly positive, one third of them report having experienced some retaliatory measures (mostly from customers).
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