EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
Applicants must also submit to the Commission any evidence in connection with the cartel that they have in their possession or that is available to them at the time of the submission, including, in particular, evidence contemporaneous to the alleged infringement. Availability Immunity applicants must also co-operate ful - ly, genuinely, expeditiously and on a continu - ous basis with the Commission. In practice, an immunity applicant will have to: • provide the Commission with all relevant information and evidence concerning the cartel that is available to it or that comes into its possession; • promptly answer any request from the Com - mission that may contribute to the establish - ment of the facts and make sure that cur - rent (and, if possible, former) directors and employees remain available to be interviewed by the Commission; • refrain from concealing, falsifying or destroy - ing relevant information concerning the cartel; and • refrain from disclosing the existence or con - tents of its immunity application before the Commission has issued an SO. In order to obtain immunity, undertakings are expected to end their involvement in the cartel immediately following their immunity application (unless the Commission requests them to act otherwise in order to preserve the integrity of inspections). Immunity will not be available to undertakings that have concealed, falsified or destroyed rel - evant information or evidence concerning the cartel. Undertakings that have coerced other undertakings to join the cartel or to remain in it
are not eligible for immunity from fines, although applicants for immunity that have acted as coer - cers can still obtain a reduction in the fines if they meet the conditions to qualify for a reduction. Markers Companies applying for immunity from fines may be able to obtain a marker at the discretion of the Commission, which preserves their posi - tion in the queue of leniency seekers pending the provision of the full information necessary to qualify for immunity. Markers are not available for companies applying for a reduction in fines. An application for a marker must contain infor - mation on: • the applicant’s name and address;
• the parties to the cartel; • the affected products; • the affected territories;
• the duration of the cartel; and • the nature of the cartel conduct.
Applicants must provide information on any past or potential future leniency applications to any other competition authorities in relation to the cartel. They must also state the reasons why they consider that the granting of a marker is necessary (eg, because the applicant needs to carry out further investigation). If a marker is granted, the applicant will have to perfect it by supplying the information and evidence necessary to secure immunity before the deadline set by the Commission. This infor - mation and evidence will be deemed to have been submitted on the date when the marker was granted. The deadline to perfect the marker is short (typically under a month). The applicant can formally request for a marker to be extend -
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