Last month, the French Competition Authority ("the
Authority") updated the "Procedural Notice" for its
leniency program. (Click here for the 2015 version of the Notice in
French and here for the 2009 version of the Notice in
English.) As in the U.S., the French leniency program allows
enterprises that report cartel activity and cooperate in
investigations to avoid fines and other penalties.
Subject to certain conditions, the program provides total
immunity from fines (Type 1 leniency) for (1) an enterprise that is
the first to report an illegal agreement that the Authority
previously did not know about; or (2) the first to submit proof of
an illegal agreement that the Authority was aware of, but did not
have sufficient evidence to prove.
An enterprise is eligible for partial reduction of
fines–generally up to 50%–if it provides evidence that
adds value to the Authority's investigation. This is known as a
Type 2 leniency application.
The new Notice has three goals:
It clarifies how the leniency program is implemented;
It incorporates new leniency principles that have been
developed since the last revision in 2009; and
It reflects changes made in the 2012 European Competition
Network model leniency program
The new Notice achieves these goals through a number of key
First, the Authority represents that it will issue press
releases announcing any raids it has conducted—without
identifying the target—so that companies in that industry who
were not raided may have equal access to the leniency program and
be given an opportunity to investigate their own conduct and apply
for leniency if appropriate. The Authority also indicates that it
will announce when it has closed an investigation, a practice that
will provide transparency and assist companies in evaluating their
Second, the new Notice establishes a schedule of Type 2 fine
reductions applicants are eligible to receive based on how quickly
they come forward. These reductions are:
25% to 50% for the first applicant to come forward;
15% to 40% for the second applicant; and
Up to a 25% reduction in fines for subsequent applicants.
This schedule is designed to provide certainty for companies
considering whether to participate in the leniency program while
still allowing the Authority flexibility to evaluate how valuable a
company's cooperation was to its investigation.
The Notice also provides special protections to companies that
offer information that results in an increase in the total fine
amount. Such a company is only subject to a reduced fine based on
the lower fine that would have resulted absent the information it
Third, the Notice provides information about the role of the
Leniency Officer, an Authority official who is available to provide
information to companies interested in learning more about the
leniency program prior to applying. The Leniency Officer also works
with investigators to determine the applicants' order of
participation in the program.
Fourth, the Notice reflects the new procedures in the 2012
European Competition Network model leniency program for handling
leniency applications that are made to the European Commission as
well as to national competition authorities. The Notice provides
that companies cooperating with the European Commission may file
either Type 1 or Type 2 "summary applications" with the
Authority. These applicants receive leniency priority as if they
had submitted a free-standing application to the Authority. They
are required to provide updates if they submit new information to
the European Commission or if it rejects their applications.
Fifth, the Notice clarifies that a parent company must submit
its own separate leniency application if it has divested a
subsidiary that engaged in cartel activity.
Finally, the Notice clarifies procedures for maintaining an
applicant's leniency priority order and status in the leniency
It will be interesting to see if the added certainty and
procedural safeguards set out in the new Notice increases
participation in the leniency program in France. Other EC member
states may adopt similar safeguards to provide incentives to
companies engaged in cartel activity to self-report and apply for
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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