LENIENCY
Under the leniency program members of cartels can benefit from lenient treatment by the Competition Protection Agency (CPA) if they cooperate with the CPA during its investigations, in line with the Article 93 of Competition Act.
The leniency program covers cartels, but it does not apply on vertical restrains and abuses of a dominant position.
CARTELS – agreements or concerted actions among two or more competitors, which have as their object the prevention, restriction or distortion of competition on the market through practices such as the fixing of purchase or selling prices or other trading conditions, limitations of production or sales and the sharing of markets.
Under the leniency procedure the CPA can grant either immunity from administrative sanctions or reduction of administrative sanctions, in the administrative procedure.
The rules of procedure for granting immunity from administrative sanctions or reduction of administrative sanctions are contained in the Decree on the procedure for granting immunity and reduction of the administrative sanction on undertakings participating in cartels (Official gazette RS, nr. 130/22; hereinafter: Decree).
In order to benefit from the leniency, undertaking must submit an application and fulfill all the conditions set in Article 93 of the Competition Act and the Decree.
In order to qualify for the IMMUNITY from administrative sanction an undertaking must submit AN APPLICATION and fulfill the following conditions (paragraph 1, Article 93 Competition Act):
1. fully and completely disclose to the CPA its participation in the alleged cartel;
2. is the first to submit evidence which according to the CPA, enables to carry our targeted inspection into the alleged cartel, provided that the CPA does not yet have sufficient evidence to carry out such an inspection or has not yet carried out such an inspection, whether, in the opinion of the CPA, they are sufficient to establish an infringement of Article 5 of Competition Act or of Article 101 of the TFEU in relation to the alleged cartel, where the CPA has not already had sufficient evidence to establish that infringement and no other undertaking has previously qualified for immunity from the administrative sanctions in respect of that alleged cartel,
3. fully and completely disclose its participation in the alleged cartel,
4. cooperate genuinely, fully, continuously and without delay with the CPA throughout the proceedings for the enforcement of competition rules against all parties to the proceedings and provide the CPA without delay with all relevant information and evidence relating to the alleged cartel in its possession and accessible to it (see also Article 8 of the Decree), such as providing the CPA without delay with all relevant information and evidence relating to the alleged cartel acquired or at its disposal, to ensure the cooperation of current employees and, where possible, of previous employees and members of the management or supervisory bodies with the CPA;
5. put an end to its participation in the alleged cartel as soon as it submits its application (with the exception of those activities which, in the opinion of the CPA, are reasonably necessary to protect the interest of the investigation),
6. in the course of planning the application, must not destroy, falsify or conceal information or evidence relating to the alleged cartel, or reveal facts concerning the filing or content of his proposed application other than to the European Commission or the competition authorities of another Member State or of third countries,
7. has not forced other members of the cartel to join or remain in the cartel.
In order to qualify for the REDUCTION of administrative sanction an undertaking must submit AN APPLICATION and fulfill the following conditions (paragraph 2, Article 76 Competition Act):
1. fully and completely disclose to the CPA its participation in the alleged cartel;
2. provides evidence of the alleged cartel which represents significant added value to prove the alleged cartel in the light of the evidence already in the CPA’s possession,
3. cooperate genuinely, fully, continuously and without delay with the CPA throughout the competition enforcement proceedings against all parties to the proceedings and provide the CPA without delay with all relevant information and evidence relating to the alleged cartel which falls into the applicant’s possession and is accessible to it,
4. ceases its participation in the alleged cartel as soon as a leniency application has been made to the CPA in relation to the reduction of the administrative sanction, unless, in the opinion of the CPA, this would be contrary to the interests of the investigation; and
5. in the course of planning a leniency application, must not destroy, falsify or conceal information or evidence relating to the alleged cartel, or disclosed facts relating to the submission or content of the proposed application other than to the competition authorities of another Member State or of third countries.
RANGE OF REDUCTIONS:
- first offender to fulfill conditions –30 - 50 %
- second offender to fulfill conditions –20 - 30 %
- other offenders to fulfill conditions – up to 20 %
WHO CAN APPLY FOR LENIENCY?
An application can be made only by OFFENDERS - THAT IS CARTEL MEMBERS. They are legal persons, private entrepreneurs, individuals, who perform economic activities, that are cartel members and their responsible persons as defined in Article 15 of Minor Offences Act (Official gazette RS, nr. 7/03 and subs.).
AN APPLICATION
Offender submits the application, by filling in one of the forms that are annexed to the Decree, including also list of attachments and list of evidence, and provides all required information and evidence.
Application and all the evidence provided are considered to be CONFIDENTIAL INFORMATION.
Ø application for immunity/reduction of administrative sanction (annex 1).
The offender must specify, in the application, whether the application should be considered for immunity only or for reduction as well or for reduction only.
POSSIBLE METHODS OF APPLICATION
• BY MAIL IN CLOSED ENVELOPE BEARING THE FOLLOWING MARK:
» NE ODPIRAJ, ZAUPNI PODATEK, ZA PROGRAM PRIZANESLJIVOSTI« (»DO NOT OPEN, CONFIDENTIAL INFORMATION, FOR THE LENIENCY PROGRAMME«)
ADDRESSED TO:
AGENCIJA RS ZA VARSTVO KONKURENCE
DUNAJSKA 58
1000 LJUBLJANA
SLOVENIJA
• IN WRITTING, IN PERSON AT THE CPA, DURING OFFICE HOURS:
Monday: from 9.00 to 15.30
Tuesday: from 9.00 to 15.30
Wednesday: from 9.00 to 15.30
Thursday: from 9.00 to 15.30
Friday: from 9.00 to 14.30
• ORALY, IN PERSON AT THE CPA STATED FOR THE RECORD – PREVIOUS APPOINTMENT REQUIERED
• E-MAIL: leniency.mg@gov.si
• PHONE: +386 1 431 02 79
• BY FAX: +386 1 478 34 75
• DURING INSPECTIONS: inspected company can inform authorized CPA employees during the inspection that it wishes to make a formal application (only in connection with the cartel that is the subject of the inspection!). The company must then submit an application within 15 days in one of the ways set out above. The CPA may, for duly justified reasons, extend the 15-day time limit.
ACKNOWLEDGEMENT OF THE RECEIPT OF THE APPLICATION
After the receipt of the application, the CPA, will mark the application with the date, hour and minute of the receipt.
In the case of the submitting of a declaration by post or in writing, in person at the CPA’s premises, the CPA shall at the request of the undertaking or contact person (in case of hypothetical application) acknowledge receipt of the application using a specific form (Annex 6 of the Decree). Where an application is submitted orally, in person at the CPA, the CPA shall, at the request of the undertaking, send a copy of the minutes to the undertaking.
The application and any evidence attached to it shall be regarded as confidential information.
LANGUAGE OF THE APPLICATION
An undertaking shall file a leniency application in Slovenian language unless the CPA agrees that the leniency application may be filed in one of the other official languages of the European Union.
DEALING WITH THE APPLICATIONS
Applications relating to the same infringement shall be treated in the order of receipt.
Applications for immunity and those for reduction of the administrative sanction shall be treated separately. Applications for reduction shall be considered after a decision has been taken on the applications for immunity.
LANGUAGE OF THE APPLICATION
An undertaking shall file a leniency application in Slovenian language unless the CPA agrees that the leniency application may be filed in one of the other official languages of the European Union.
DEALING WITH THE APPLICATIONS
Applications relating to the same infringement shall be treated in the order of receipt.
Applications for immunity and those for reduction of the administrative sanction shall be treated separately. Applications for reduction shall be considered after a decision has been taken on the applications for immunity.
OTHER FORMS OF APPLICATIONS
Ø hypothetical application (Annex 2)
HYPOTHETICAL APPLICATION The application does not need to reveal the identity of the offender or other cartel members or detailed description of the infringement, but must specify a contact person (see Article 13 of the Decree) It is not possible to submit hypothetical application orally, at the CPA
Ø summary application (annex 3)
SUMMARY APPLICATION - an application by an undertaking which has filed an application to the European Commission, either in the form of an application for a marker or in the form of a full application, for immunity of an administrative sanction in relation to the same alleged cartel, provided that such summary application covers the territory of more than three Member States (Article 14 of the Decree).
Ø application for marker (annex 4)
APPLICATION FOR MARKER – An undertaking can make an application for a marker, if it does not have all the information needed to submit a full application for immunity (see Article 12 of the Decree).
RELATIONSHIP WITH CRIMINAL PROCEDURE
The Criminal Code (Official gazette RS, no. 55/08 (66/08 corr.) and subs.) contains in Article 225 criminal act Unlawful Restriction of Competition, which also applies to cartels.
In accordance with Article 225(2) of the Criminal Code, a perpetrator who violates the prohibition of cartels and announces the offence before it was detected or became aware of its discovery and participated in its investigation and remedial action and did not compel others to participate in the restriction of competition, or compel them to continue to participate in it, may be released from the sentence.
The benefits of the leniency program as defined in Competition Act and the Decree also concern possible criminal proceedings. Thus, current and former members, members of the management or supervisory bodies and other employees of the undertaking which has submitted a leniency application are protected against the sanctions imposed by the competent authorities in criminal proceedings relating to participation in a cartel referred to in the leniency application, subject to compliance by that natural person with certain conditions:
— disclose fully and completely to the CPA its participation in the alleged cartel,
— as a first step, to provide evidence which, in the CPA’s view, enables an investigation into the alleged cartel to be carried out if the CPA does not yet have sufficient evidence to carry out an investigation or has not yet carried out an investigation, whether, in the CPA’s view, they are sufficient to establish an infringement of Article 5 of Competition Act or Article 101 TFEU in relation to the alleged cartel, where the CPA did not already have sufficient evidence to establish this infringement and no other undertaking previously fulfilled the conditions for the waiver of the administrative sanction in relation to that alleged cartel
— to cooperate actively with the authority responsible for criminal proceedings and, where an undertaking’s application for dismissal has been made, before the competition authority has informed that person of the proceedings for infringements of competition law.
The competent law enforcement authority shall continue prosecution if that natural person does not cooperate or has ceased to cooperate with him or if the leniency application has been made after the competent criminal prosecution authority has already issued an act against that natural person which focused his suspicion of committing an infringement.
The public prosecutor shall not be obliged to initiate criminal proceedings or to propose dismissal or a reduction of a criminal penalty, or to refrain from prosecution, even where the contribution to the detection and investigation of a cartel of a natural person outweighs the interest in prosecution or sanctioning.
The submission of a leniency application shall be without prejudice to the right of injured parties who have suffered harm as a result of an infringement of competition law to claim full compensation for such harm.