EU Court of Justice provides guidance on the interplay between leniency applications before the Commission and National Competition Authorities

The EU Court of Justice (Court), in case DHL Express S.r.l. et al. v. Autoritá Garante della Concorrenza e del Mercato et al., by a judgement rendered on 20 January 2016¹, ruled on the relation between the EU and Member-States’ leniency programmes.

The background of this case concerns the separate leniency applications on antitrust breaches submitted in 2007 and 2008 before the European Commission and the Autoritá Garante della Concorrenza e del Mercato (Italian authority responsible for competition compliance and enforcement of market rules, the “AGCM”) by Italian companies DHL Express, DHL Global Forwarding, Agility Logistic and Schenker.

On 15 June 2011 the AGCM found that the referred companies had participated in a cartel in the international freight forwarding sector affecting operations to and from Italy. While the Italian authority fined the DHL group companies and Agility Logistic (the fines were subsequently reduced as a result of the leniency applications submitted by these companies), Schenker was not fined by the AGCM, because the authority considered that this company was the first company to have applied for immunity from fines in Italy on 12 September 2007 and therefore benefited from the applicable Italian rules on leniency.

DHL appealed the AGCM decision before the Italian courts, reasoning that the competition authority should have taken into account its leniency application submitted by the DHL group companies before the European Commission on 5 June 2007 prior to the application lodged by Schenker before the AGCM.

Based on this factual framework, the Court in the January 2016 judgment recalls that the European Competition Network adopted in 2006 at the European level a Model Leniency Programme. Furthermore, the court highlights that in 2007 AGCM had also adopted in Italy a similar model providing for a summary leniency application. In this context the Court states, clarifying its previous jurisprudence on this legal matter², that instruments adopted in the framework of ECN are not binding on national competition authorities, irrespective of the judicial or administrative nature of those authorities.

The Court also finds that there is no legal link between the application for immunity submitted to the European Commission and the summary application submitted to a national competition authority in respect of the same restrictive conduct. As such, the Court considers that where the summary application submitted to a national competition authority has a more limited material scope than the application for immunity submitted to the European Commission, that national authority is not required to contact the Commission in order to obtain information for the purpose and results of the leniency procedure triggered at the European level.

Further, the CJEU also clarifies that EU law does not preclude a national leniency regime which allows the acceptance of a summary application for immunity from an undertaking which submitted to the Commission in parallel not an application for full immunity, but rather a mere application for reduction of the potential applicable fine. Therefore, in line with the Court’s reasoning, national law must allow the possibility for an undertaking which was not the first to submit an application for immunity to the Commission and which, accordingly, was eligible before the Commission only for a reduction of a fine to submit a summary application for full immunity to a national competition authority.

In practical terms this judgement has relevant implications on the coordination by companies of leniency procedures related to breach of competition rules across EU Member-States. Indeed, pursuant to this ruling, particular attention is required to the national leniency rules applicable in each affected Member-State when preparing leniency applications to be submitted to the European Commission. Such cautiousness is materially important in order to mitigate and safeguard the risk of not obtaining immunity, or reduction of fines at the national level.

The court of justice's ruling has relevant implications on the coordination of leniency procedures related to the breach of competition rules across EU member states to the extent that it highlights the importance of paying particular attention to national leniency rules applicable in each affected member-state and the necessary diligence and strict synchronization between leniency applications lodged before the european commission and national competition authorities.

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