On 16 March 2017, the European Commission introduced a new tool which helps whistle-blowers to report antitrust concerns to the Commission and thereby to stay anonymously.
Although it was already possible to submit anonymous hints to the Commission, cartels were mostly detected through the Commission's established leniency programme whereby companies can notify the Commission themselves about their own violations and participations in cartels. In return, this can lead to a reduction of potential fines.
But the new tool especially encourages individuals who know about the existence or the planning of a cartel or about other antitrust behaviour to notify the Commission. Commissioner Margrethe Vestager underlines this by saying that inside information "can contribute to the success of our investigations quickly and more effectively to the benefit of consumers and the EU's economy as a whole."
New system to provide anonymous information
The establishment of a specific encryption system shall guarantee anonymity and a two-way communication simultaneously. This is made possible by an interconnected external service provider which only forwards the content of the received messages but no metadata which allow to ascertain the transmitter's identity. In doing so, it enables persons to provide relevant information as well as to ask the Commission to reply without having to be scared about uncovering. Furthermore, in case of uncertainties the Commission can ask further questions. This promotes a more precise and reliable transfer of information and accelerates the investigations.
You can find the anonymised procedure via this link. Persons who do not want to stay anonymous can contact the Commission directly via a provided telephone number or e-mail address.
Practical advice
Because of this, the probability to expose antitrust conduct increases. The German Federal Cartel Office (FCO, Bundeskartellamt) is already using such an anonymous whistle-blower system for a long time. According to the FCO, the system is very successful. With regard to concerned undertakings, the new feature may lower the chance to get a remission of fines by virtue of a leniency submission because this is only possible if the Commission does not already know about antitrust conduct from a whistle-blower. In this regard, it is advisable to review the intragroup compliance structure and, where appropriate, to establish an intern whistle-blower system. By providing such a system which allows employees to raise concerns anonymously, the company might be enabled to forestall an employee's corresponding message to the Commission. Thereafter, the company can decide whether it would like to apply for leniency.
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.
