Together, but not in each other’s pockets

03/02/16

On 20 January 2016, the Court of Justice issued a preliminary ruling answering the following questions of the Consiglio di Stato (Italy) regarding the coexistence of leniency programmes within the European Competition Network (ECN): what are the effects of decisions adopted within the ECN? Is there any legal link between a leniency application filed before the Commission and other leniency applications before national authorities? In case an undertaking does not file a full leniency application but only a request for a reduction of the fine, does it also have the right to ask for total immunity before a national authority?

As it is well known, in 2006 the ECN adopted a model leniency programme. One year later the Italian Antitrust Authority (Autorità Garante della Concorrenza e del Mercato, “AGMC”) followed the lead and adopted a similar model including an abridged leniency form.

DHL Express (Italy), DHL Global Forwarding (Italy), Agility Logistics and Schenker Italiana separately filed leniency applications in 2007 and 2008, before the Commission and the AGCM, admitting to illegal practices in the international freight forwarding sector. On 15 June 2011, the AGCM declared that several undertakings (DHL, Schenker and Agility Logistics) had participated in a cartel for international freight forwarding to and from Italy. The Italian authority considered that Schenker was the first to ask for leniency, and the company therefore benefited from immunity.

Evidencing disagreement, DHL appealed before the Italian courts as it considered that the AGCM was mistaken on which was the first leniency application. According to DHL, its own application lodged before the Commission on 5 June 2007 (i.e., five months before Schenker’s application in Italy) was first.

To understand DHL’s tantrum, a couple of further nuances are worth noting. Even though the leniency application before the Commission was filed on 5 June 2007, the Commission decided in June 2008 that it would only act against international air freight forwarding, and left it for national authorities to act against infringements related to maritime and road transport. In order to cover any plausible scenarios, DHL had decided to submit a parallel application before the AGCM on 12 July 2007, designed to cover any illegal behaviour in the market for international freight forwarding. Nevertheless, according to the AGCM, this application referred only to maritime and air transport, excluding road transport. Almost one year later (23 June 2008), DHL lodged a complementary application in order to extend the original one to road transport, providing “new” evidence of the illegal practices previously reported. Ironically, in the first application DHL had provided no evidence of wrongdoings regarding road transport because it had not identified any instances of such wrongdoing yet…

Answering the questions of the national judge, the Court of Justice held that decisions adopted within the ECN are not binding for national competition authorities. There is no legal link between a leniency application filed before the Commission and an abridged leniency application filed before a national authority. This is why the national authority needs not examine the latter with due consideration to the European application.

To sum up, a national authority (i) does not need to contact the Commission in order to know the details of the European procedure; and (ii) may accept an abridged leniency application, regardless of any full or partial leniency application lodged before the Commission.

This judgment clearly reminds us that leniency programmes do reflect the shared nature of competences between the Commission and national competition authorities. Even if the judgment does not refer to decisions regarding leniency applications before regional competition authorities, we understand that the findings are also applicable to decisions by such authorities. A hierarchy amongst leniency applications must be avoided, and therefore the finding clearly applies at any territorial levels.