The Office of Fair Trading ("OFT") today published its new Guidance on the handling of leniency applications and no action letters. This replaces the OFT's previous interim guidance which has been in place since November 2006.
The OFT's leniency regime has become a crucial weapon in its fight against cartels. Under the regime, the first business to confess will receive full immunity from fines with criminal immunity for those employees involved. Thereafter, civil immunity is applied on a sliding scale based on your place in the leniency queue with criminal immunity determined on an individual by individual basis.
The Guidance (which runs to some 85 pages) aims to provide potential leniency applicants with greater certainty by making the application process more transparent. It describes the process to be followed by the applicant's legal adviser to establish whether full immunity (referred to as Type A immunity) is available in principle and, if so, the steps required to secure that immunity. It also details the procedures to be followed and the discounts available where the business is not first to the OFT's door and its approach to assessing individual criminal immunity in such circumstances.
The Guidance has also elaborated on a number of key concepts including the Coercer Test - this bars a coercer (in other words a cartel member who pressurises an unwilling participant to take part in the cartel activities) from receiving civil and/or criminal immunity - and the elements of maintaining "continuous and complete cooperation" as part of your leniency deal.
With the continued escalation in fines for cartel activity and the recent conviction of three individuals in the UK for cartel offences, complete civil and criminal immunity does represent a very attractive proposition for cartel members. The key, however, is to be first to the OFT's door and - if you are thinking about it - your cartel colleagues probably are too!
MacRoberts has extensive experience in dealing with cartel investigations and leniency applications. Immediate specialist help is imperative when dealing with leniency approaches and applications to the European Commission or Office of Fair Trading to ensure that your interests are fully protected. We also offer full competition law training, compliance and audit services.
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The material contained in this article is of the nature of general comment only and does not give advice on any particular matter. Recipients should not act on the basis of the information in this e-update without taking appropriate professional advice upon their own particular circumstances.
