NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
and insofar as the ACM considers the continua - tion thereof to be reasonably necessary in order to preserve the effectiveness of inspections. The ACM also grants immunity from fines to a leniency applicant if the above-mentioned con - ditions have been met and the application con - cerns a cartel into which the ACM has already launched an investigation but not yet sent an SO to any of the parties involved. This immunity will only be granted, however, if the application provides the ACM with documents that stem from the period of the practice in question that were not already in the ACM’s possession, and on the basis of which the ACM is able to prove the existence of the cartel. A company or individual considering applying for leniency may contact the ACM to exchange ideas about a body of facts and the applicability of the leniency policy in that context. A prospec - tive leniency applicant may also inquire with the ACM by telephone, but only through a lawyer admitted to the Bar, to determine whether immu - nity from fines (the position of the first-in-the- door whistle-blower) is still available. If the ACM responds positively to the inquiry, the lawyer is required to submit an application for immunity from fines immediately. A leniency application includes a written leniency statement which contains, inter alia, a detailed description of the cartel arrangement, includ - ing the products or services involved, the geo - graphical scope, the duration, the functioning of the cartel and the estimated market volumes or sales affected by the cartel, as well as the specific dates, locations, contents of and par - ticipants in the cartel interactions. Furthermore, it must mention the names and addresses of all the undertakings that participate or participated in the cartel, as well as the names, positions,
working locations and, where relevant, home addresses of the individuals who are or who have been involved in the cartel. A leniency application also contains evidence corroborating the statements, insofar as the applicant has such evidence or such evidence is reasonably available to the applicant at the time of the submission of the application. A natural person who submits a leniency appli - cation may be eligible for the same immunity or reduction of a fine as the undertaking at which they work, if they declare that they wish to be considered a leniency co-applicant with the undertaking, and they meet the conditions for immunity from fines on their own. With the ACM’s permission, a leniency statement may be submitted orally, if the ACM believes that the leniency applicant has a legitimate interest in doing so. In such cases, the ACM records the oral statement and draws up a transcript. The ACM does not disclose the identity of the leniency applicant to third parties until the SO has been issued to everyone involved in the car - tel, unless the leniency applicant has consented to disclosure. In accordance with Article 12 of EU Regulation 1/2003, the ACM only forwards a leniency state - ment to another competition authority or to the European Commission if: • the leniency applicant has consented to the sending; or • the competition authority to which the ACM forwards the leniency statement has received a leniency application from the same leniency applicant with regard to the same alleged cartel as the ACM has on the condition that,
242 CHAMBERS.COM
Powered by FlippingBook