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Leniency Programme

Leniency Programme. Igor Pospíšil Director of the Cartel Department St . Martin Conference 2009 November 12, 2009. Agenda of presentation. Development of Leniency Programme i n CR and its current application Access to File and Leniency Cartel C riminalization and Leniency

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Leniency Programme

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  1. Leniency Programme Igor Pospíšil Director of the Cartel Department St. Martin Conference 2009 November 12, 2009

  2. Agenda of presentation • Development of Leniency Programme in CR and its current application • Access to File and Leniency • Cartel Criminalization and Leniency • Multijurisdictional issues • Leniency and Settlement

  3. I. Development of Leniency Programme in CR and its current practice

  4. Previous Leniency Programme From July 2001 to June 2007 Included also vertical agreements Immunity granting – administrative discretion 4 applications

  5. Current Leniency Programme since June28, 2007 Based on ECN Model Leniency Programme Differences (ECN Model Leniency Programme - Report on Assessment of the State of Convergence) • Immunity or fine reduction cannot be granted to the applicant, who initialized cartel, who coerced others to participate on a cartel, or remain in it and who was a leader of a cartel • The applicant has to end his participation in cartel immediately after filing an application • The application could be submitted orally (para. 2.1.2 programme) – inaccuracy in the report

  6. Current situtation of Leniency Applications

  7. Current situtation of Leniency Applications

  8. … worth to mention more immunity applicants in one case Down-raidstogether with EC Leniency Working Group – ECN, Working Group Cartels Web address– http://www.compet.cz/hospodarska-soutez/zakazane-dohody-a-zneuziti-dominance/leniency-program/presents programme for public; contacts for applications’ submission or for consultation

  9. II. Leniency and access to file

  10. Former legal regulation • till September 1, 2009 under Administrative Procedure Code (APC) • Non-accessible documents - containing business secret • Documents containing business secret – accessible for parties when used as a prooffor the decision

  11. Current approach of the Office • In the launched proceedings the Leniency application is considered as business secret • Documents provided in Leniency application are not accessible to parties until the Statement of Objection is issued (proceedings opened under the APC)

  12. Current legal regulation • Access to file – special provision in the Act on Protection of Competition (Art. 21c) • The parts of file containing business secret are not accessible • The documents without business secret could be requested

  13. III. Cartel Criminalizationand Leniency

  14. Cartel as Criminal Offence • Participation in cartel could be criminal offence under Art. 127 of Criminal Code • from 1st January 2010 – new Criminal Code -under Art. 248 para. 2 - explicitly cartel as the criminal offence • Cartel - criminal offence under both Acts • The duty to report a crime – Criminal Procedure Act (Art. 8), does not change • Can it threat Leniency? - no explicit link to effective repentance

  15. IV. Multijurisdictional aspects

  16. Multijurisdictional aspects • Most of submitted applications are proceed by more CA • Subjective period vs. waiting for EC statement of objection • Ne bis in idem – judgement of the Supreme Administrative Court - two different torts • Threat of inconsistency - parties to proceedings, proofs,definition of relevant market, relevant period • Fine calculation – how to set a fine in market-sharing cases, when some participants did not supply goods to CR

  17. V. Leniency and Settlement

  18. Leniency and Settlement • The settlement as means of proof shall not apply in horizontal agreement cases, where the leniency could be used • Settlement as a procedural tool (principles of art. 6 APC – promptness and efficiency of procedure) could be used • Different interpretation – settlement could threat Leniency functioning - especially the reduction of fine

  19. Thank you for your attention. Other information: Igor Pospíšil igor.pospisil@compet.cz www.compet.cz

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