EU Law and Practice Contributed by: Andrzej Kmiecik, Richard Burton and Catherine Gordley, Van Bael & Bellis
ed. However, in practice, such requests are not always granted. Leniency Any company that does not qualify for immunity can still benefit from a reduction in the fine if it provides the Commission with evidence of the cartel that represents significant added value in regard to the evidence that the Commission has already obtained. Evidence will be considered to be of significant added value when it enhances the Commission’s ability to prove the existence of the alleged cartel. The Commission will con - sider that contemporaneous written evidence in direct connection with the cartel has greater added value than later evidence that relates to the cartel only indirectly. The Commission will also consider the degree of corroboration from other sources that is necessary to rely on the evi - dence provided, in order to determine its added value. Leniency applicants must also co-operate fully, genuinely, expeditiously and on a continuous basis with the Commission. In order to obtain a reduction in the level of fines, undertakings are required to end their involve - ment in the cartel immediately following their immunity application (unless the Commission requests them to act otherwise in order to pre - serve the integrity of inspections). Leniency will not be available to undertakings that have concealed, falsified or destroyed rel - evant information or evidence concerning the cartel. Leniency applicants must refrain from disclosing the existence or contents of their leniency application (except to other competi - tion authorities).
The Commission may grant reductions in fines to qualifying applicants within the following bands: • the first undertaking that provides evidence of significant added value will obtain a reduction of 30%–50%; • the second undertaking that provides evi - dence of significant added value will obtain a reduction of 20%–30%; and • subsequent undertakings that provide evi - dence of significant added value will obtain a reduction of up to 20%. The Commission has discretion to decide the exact reduction to be granted within each of these bands on the basis of when the applicant submits the evidence and the extent to which this evidence represents significant added value relative to the evidence already in the Commis - sion’s possession. Under EU law, there is no provision either to increase fines for failing to disclose the com - pany’s involvement in another, unrelated cartel, nor to reduce fines related to one cartel by dis - closing involvement in another, unrelated cartel. Leniency applications may be made in writing or in the form of an oral submission to the Commis- sion, supported by the relevant contemporane - ous evidence. In March 2019, the Commission launched an online “eLeniency” tool to make it easier for companies to securely submit leni - ency statements and documents. According to the Commission, leniency statements submitted via eLeniency are protected against discovery in civil litigation, in the same way as oral submis - sions.
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