Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Court of Justice finds EU, national competition authorities’ leniency programs co-exist autonomously, (Jan 20, 2016)

By Michael Menzhuber, J.D., LL.M.

The Court of Justice of the European Union (ECJ) has declared that instruments adopted in the context of the European Competition Network (ECN), a cooperate mechanism between the European Commission (EC) and national competition authorities, are not binding on national competition authorities. The ECJ’s ruling came in response to a request by the Consiglio di Stato (Council of State, Italy) to interpret EU law concerning the relationships between various procedures co-existing within the ECN, according to an announcement issued today.

The Model Leniency Programme (MLP) provides for a summary leniency application, granting immunity from fines to the first participant in a cartel to submit evidence that enables the finding of an infringement of the competition rules. A similar model providing for summary leniency was adopted by the Autorita Garante della Concorrenza e del Mercato (AGCM), the Italian competition authority.

DHL Express and DHL Global forwarding (collectively, “DHL), Agility Logistic (Agility) and Schenker Italiana (Schenker) submitted separate applications for lenience to the EC and to the AGCM. The AGCM recognized Schenker as the first company to have applied for immunity and, consequently, granted it immunity from fines under its national leniency program.

DHL subsequently brought an action before the Italian courts for an annulment of the AGCM’s decision. According to DHL, AGCM should have taken into account the leniency application that it submitted to the EC, which was prior to the application made by Schenker to the AGCM.

In addition to ruling that instruments adopted in the context of the ECN are not binding on national competition authorities, regardless of the judicial or administrative nature of those authorities, the ECJ found that: (1) there is no legal link between the application for immunity to the EC and the summary application submitted to a national competition authority in respect to the same cartel; and (2) EU law does not preclude a national leniency system which allows the acceptance of a summary application for immunity from an undertaking which had submitted to the EC, in parallel, only an application for reduction of a fine.

News: Antitrust