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Conditional Immunity in EU Cartel Cases: Legal Framework and Challenges

This article explores the legal framework and challenges of granting conditional immunity in EU cartel cases, as viewed by the European Commission. It discusses the requirements for conditional immunity, the marker system, evidentiary threshold challenges, and the need for continuous cooperation. The article emphasizes the importance of providing concrete evidence, maintaining continuous cooperation, and avoiding the destruction or concealment of evidence.

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Conditional Immunity in EU Cartel Cases: Legal Framework and Challenges

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  1. The threshold for granting conditional immunityThe European Commission perspective Kris DEKEYSER Head of Unit DG Competition, European Commission

  2. Conditional Immunity: the legal framework (1) • Requirements for conditional immunity • Disclose (own) participation in a cartel affecting EU • Enable Commission to carry out a targeted inspection or finding an infringement • Corporate statement describing the cartel arrangement + documentary evidence • Not coerced others

  3. Conditional Immunity: the legal framework (2) • Marker for immunity applicants • Objective: protect applicant's position in the beginning of the queue • Explicit application • Minimum information requested: is there a suspected cartel and is the Commission competent? • Necessary time granted to complete internal investigations

  4. Conditional Immunity: challenges • CI - a sweet carrot and a hard stick • immunity from fines at the end of the investigation • the strongest incentive at the beginning of the investigation

  5. Conditional Immunity: challenges • The marker period • The evidentiary threshold • The continuous cooperation after granting CI

  6. Conditional Immunity: marker challenges • Duration: determined on a 'case by case' basis (usually 3 weeks) • Extension: possible if applicant is acting in good faith • Intense and structured dialogue: pro-active attitude

  7. Conditional Immunity: evidentiary threshold challenges • Applicants shall be ready 'to get wet' • Disclosing participation in an alleged cartel affecting the EU • evidence needs explanation • concrete and detailed description of contacts and arrangements reached; not merely ”discussions” or ”information exchanges”

  8. Conditional Immunity: evidentiary threshold challenges • CA - high but objective evidentiary threshold • Relationship based on trust • genuine effort to describe the cartel and provide evidence • Avoid vague statements: 'May be' or 'it appears' v. firm language • Leniency statements supplemented with corroborative evidence

  9. Conditional Immunity: continuous cooperation challenges • Full and continuous cooperation throughout the investigation • provide all evidence, answer questions • do not destroy, falsify or conceal evidence • do not disclose application • ended involvement • Withdrawal of conditional immunity? • 1 case – threshold high: 'jeopardise the investigation'

  10. Thank you for your attention

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