EU Court Affirms Independence of EU and National Leniency Programs
On January 20, 2016, the Court of Justice of the European Union issued a judgment reaffirming the independence of the cartel immunity and leniency regimes of the EU and member states. The ruling reasserts the obligation of firms to follow the terms of both the European Commission and any relevant national programs in parallel in order to obtain full immunity or fine reductions under EU and member state law.
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EU Court Affirms Independence
of EU and National Leniency
01 / 28 / 16
On January 20, 2016, the Court of Justice of the European Union (CJEU) issued a
judgment concerning the interrelationship between EU and member state cartel leniency
programs in response to a reference from Italy’s highest court, the Council of State
(Case C-428/14, DHL Express (Italy) Srl, DHL Global Forwarding (Italy) SpA v. Autorità
Garante della Concorrenza e del Mercato).
In response to three questions posed by the national court, the CJEU affirmed the inde-
pendence of the EU and national leniency programs, ruling that:
– The EU’s Model Leniency Program, which was adopted in the context of the European
Competition Network and provides “best practice” guidelines for a model leniency
program, is not binding on national competition authorities.
– There is no legal connection between an application for immunity submitted to the
European Commission and a summary application submitted to a national competition
authority in respect of the same cartel that would require the national authority to
assess the summary application in light of the application at the EU level. In partic-
ular, where the national application has a more limited scope than the EU immunity
application, the national authority is not required to contact the European Commission
or the applicant in order to establish whether the applicant has discovered illegal
conduct that is covered by the EU immunity application but not by the national
– A national competition authority is not precluded from accepting a summary applica-
tion for full immunity from an undertaking that had not applied for full immunity with
the European Commission but had only sought a reduction in fines at EU level.
In the case at hand, DHL had secured conditional immunity at the EU level for its
participation in a price-fixing cartel for international freight forwarding that covered
maritime, air and road transport. In parallel, DHL submitted a summary application for
immunity with the Italian Competition Authority (AGCM) concerning the international
sea and air freight sectors of this market, but not with respect to road transport. The
European Commission limited its investigation to the air freight forwarding sector,
leaving the national competition authorities the possibility of pursuing the infringements
in relation to the sea and road freight forwarding services at a national level. Subse-
quently, DHL supplemented its Italian application with another summary application
for immunity in order to extend its application to the international road transport sector.
However, prior to that second submission, Schenker Italiana SpA had already submitted
an application for immunity covering road freight forwarding in Italy and was awarded
conditional immunity for the road sector by the AGCM.
DHL appealed the AGCM’s decision, arguing, inter alia, that it should have received
immunity in Italy for all three freight forwarding sectors, including road transport, and
that the AGCM was required to assess its summary application for immunity in Italy, in
light of the application for immunity filed at the EU level.
In response to the Italian court’s reference, the CJEU reaffirmed the independence of
national and EU leniency programs under which national and EU-wide application are
treated separately by the European Commission and by the national competition author-
ities pursuant to their own national legislation. In particular, the court reaffirmed that the
European Commission’s notice on cooperation between it and the national competition
authorities and its notice on immunity from fines do not bind EU member states.
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2 Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates
EU Court Affirms Independence
of EU and National Leniency
The court’s judgment does not create new law, but it does
reaffirm the independence of the EU and national immunity and
leniency regimes, as well as reaffirming the resulting obligation
of firms seeking immunity from fines to satisfy the terms of both
the EU and any relevant national immunity programs in parallel
in order to obtain full immunity or fine reductions under EU
and national law. The court’s ruling reaffirms that immunity and
leniency applicants cannot rely on their application to the Euro-
pean Commission vis-à-vis national competition authorities. As
a result, immunity and leniency applicants need to file summary
applications in all potentially relevant national EU jurisdictions
and provide sufficient information to the national competition
authorities to keep those summary applications updated in order
to ensure that they are covered in the event that the European
Commission limits its investigation to only certain aspects of a
cartel, leaving the national authorities to pursue other aspects of
the cartel at the national level.
Matthew P. Hendrickson
James S. Venit
Thorsten C. Goetz
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