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
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
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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