Considering whether to apply for immunity/leniency

Most jurisdictions which prohibit cartel conduct have a leniency programme, which rewards undertakings that blow the whistle on cartels or which provide information that adds value to the competition regulator’s investigation.

An undertaking that makes an immunity application may also be able to obtain immunity from criminal prosecution for current and former employees covered by its immunity application. This is a factor to take into account when considering whether or not to apply for immunity. For further information relating to dealing with potential criminal conduct, please click here.

Once facts come to light that suggest that an undertaking may be involved in a cartel, a decision on whether or not to put down a marker down for immunity or leniency should be made as quickly as possible – ideally within 48 hours, and much more quickly if dawn raids have taken place.

Consider who has the authority to make this decision within the company and whose advice and input must be sought before doing so. Consider also involving external legal counsel who have experience in assisting undertakings to decide whether to make immunity and leniency applications and in making those applications to the relevant regulator.

The decision whether or not to apply for immunity or leniency can be very finely balanced. Factors to consider include:

  • the strength of any application that could be made and the evidence to support it
  • the obligation of continuous cooperation, which will require an immunity/leniency applicant to co-operate on an on-going basis with the regulator
  • the likely size of any fine if no application is made
  • whether or not potentially criminal conduct is involved

If an application is to be made, consider whether to make that application in writing or orally, and how much supporting evidence can be provided. If an application is made, urgent steps must be taken to ensure compliance with the duties of continuous co-operation and of not "tipping off" competitors.