NMa Approves Leniency Guidelines
The Netherlands Competition Authority (NMa) has approved the definitive Leniency Guidelines [Richtsnoeren Clementietoezegging] ('the Guidelines'). The Guidelines deviate in a few respects from the (draft) Guidelines published by NMa in its Consultation Document. Partly on the basis of responses from, for instance, VNO-NCW (the employers' organisations), Vereniging voor Mededingingsrecht [Association for Competition Law] and Competition Authorities within and outside Europe, a number of conditions were amended to increase the effectiveness of the Guidelines. The main features of the system, however, are the same.
In approving the Guidelines, NMa has provided clarity on the rules that will apply to the imposition or reduction of fines if an undertaking provides NMa with information on a cartel in which it participates or has participated. This gives NMa an instrument which may contribute to the quick and effective detection of secret and damaging cartels, which affect competitors, customers and consumers.
An undertaking which is the first to inform NMa of the existence of a cartel is assured of full fine immunity, provided NMa has not yet commenced an investigation into the cartel in question. Even after NMa has commenced an investigation, an undertaking which is the first to provide information on a cartel may be eligible for immunity, but is in any event assured of a reduction in the fine of at least 50 percent. The undertaking must provide NMa with sufficient information to enable NMa to provide evidence of the suspected infringement of the Competition Act. To qualify for immunity or a reduction in the fine greater than 50 percent, the undertaking may not have compelled any other undertaking to participate in the cartel. If a member of a cartel is not the first to inform NMa of the existence of the cartel or if the notifier has compelled any other undertaking to participate in the cartel, the undertaking will 'only' be eligible for a reduction in the fine of 10 to a maximum of 50 percent. A condition for this is that the undertaking provides information which enables NMa to provide evidence of the suspected infringement of the Competition Act. The level of the reduction in the fine corresponds to the stage of the investigation and the 'value' of the information.
Before the undertaking is granted immunity or a reduction in the fine of at least 50 percent, a number of (cumulative) conditions must be met. For instance, the undertaking is required to provide all the information that it has or obtains in relation to the cartel. In addition, the undertaking may not have compelled any other undertakings to participate in the cartel. Furthermore, the undertaking must give its full co-operation to the investigation and must refrain from any practice that may obstruct NMa's investigation. NMa must not have any prior knowledge of the information provided by the undertaking. This information must make it possible to initiate an investigation or must have added value for a current investigation. Less strict conditions apply to the granting of a reduction in the fine of 10 to 50 percent.
An undertaking which wishes to be considered for leniency must contact NMa's Leniency Office. This may be done by telephone (+31-(0)70-3301710), fax (+31-(0)70-3301700) or by e-mail (clementie [at] acm [punt] nl).
At the end of this week, NMa will publish information through its website on the changes it made to the Leniency Guidelines, relative to the Consultation Document, following the consultation round. By doing so, NMa wishes to increase the transparency of the Guidelines with a view to maximising the effectiveness of this instrument.