EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
issues its SO. At this stage, defence counsel may raise legal and factual arguments to per - suade the Commission to forgo taking action through submitting a formal reply to the SO as well as in the course of an oral hearing before the Commission. However, in practice, the defence counsel for the target of a cartel investigation is typically in close contact with the Commission from the outset of an investigation, and it may submit correspond - ence to the Commission to outline its views on the scope and conduct of an investigation at an early stage. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency The framework of the EU leniency programme is very clearly set out in the Leniency Notice. This framework, together with the existing body of precedent concerning leniency cases, provides a high degree of legal certainty for potential leni - ency applicants. Provided the applicant meets the relevant conditions (summarised below), the European Commission will grant immunity or leniency (as the case may be) at the end of the investigative procedure. The EU leniency programme is often used by companies that have become aware of their involvement in car - tel conduct. Immunity The Commission will grant immunity from fines to an undertaking that discloses to the Commis - sion its participation in a cartel affecting the EU, if this undertaking is the first to provide evidence and information that, in the Commission’s view, will allow the Commission to conduct a targeted dawn raid or find an infringement of Article 101 of
the TFEU in connection with the cartel. Immunity from fines will only be available if the Commis - sion does not already have sufficient evidence to decide to carry out an inspection or to find an infringement of Article 101 of the TFEU, and as long as the Commission has not already carried out an inspection and no undertaking has been granted conditional immunity from fines in con - nection with the cartel. Information An application for immunity should contain, to the extent known to the applicant at the time of the submission, the following information. • A detailed description of the alleged cartel – notably touching upon: (a) the cartel’s aims; (b) the cartel’s activities and functions; (c) the cartel’s geographic scope; (d) the cartel’s duration; (e) the product or service concerned; (f) the estimated market volumes affected by the cartel; (g) the specific dates, locations, participants in and contents of cartel contact/commu - nication; and (h) any relevant explanations concerning the evidence submitted in support of the ap - plication. • The names and addresses of the applicants and all the other participants in the alleged cartel. • The names, positions and office locations (and, when necessary, home addresses) of all individuals involved in the cartel. • Information on whether the applicant has submitted, or may potentially submit in the future, any leniency applications to other competition authorities in relation to the alleged cartel.
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