The threshold for granting conditional
immunity
The European Commission perspective
Kris DEKEYSER
Head of Unit
DG Competition, European
Commission
Conditional Immunity: the legal
framework (1)
• Requirements for conditional immunity
• Disclose (own) participation in a cartel
affecting EU
• Enable Commission to carry out a targeted
inspection or finding an infringement
• Corporate statement describing the cartel
arrangement + documentary evidence
• Not coerced others
Conditional Immunity: the legal
framework (2)
• Marker for immunity applicants
• Objective: protect applicant's position in the
beginning of the queue
• Explicit application
• Minimum information requested: is there a
suspected cartel and is the Commission
competent?
• Necessary time granted to complete internal
investigations
Conditional Immunity: challenges
• CI - a sweet carrot and a hard stick
• immunity from fines at the end of the
investigation
• the strongest incentive at the beginning of the
investigation
Conditional Immunity: challenges
• The marker period
• The evidentiary threshold
• The continuous cooperation after
granting CI
Conditional Immunity: marker
challenges
• Duration: determined on a 'case by case' basis
(usually 3 weeks)
• Extension: possible if applicant is acting in
good faith
• Intense and structured dialogue: pro-active
attitude
Conditional Immunity: evidentiary
threshold challenges
• Applicants shall be ready 'to get wet'
• Disclosing participation in an alleged cartel
affecting the EU
– evidence needs explanation
– concrete and detailed description of contacts and
arrangements reached; not merely ”discussions” or
”information exchanges”
•
Conditional Immunity: evidentiary
threshold challenges
• CA - high but objective evidentiary
threshold
• Relationship based on trust
• genuine effort to describe the cartel and
provide evidence
o Avoid vague statements: 'May be' or 'it
appears' v. firm language
o Leniency statements supplemented with
corroborative evidence
Conditional Immunity: continuous
cooperation challenges
• Full and continuous cooperation
throughout the investigation
•
•
•
•
provide all evidence, answer questions
do not destroy, falsify or conceal evidence
do not disclose application
ended involvement
• Withdrawal of conditional immunity?
• 1 case – threshold high: 'jeopardise the
investigation'
• Thank you for your attention