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First leniecy applicant fined due to negligent non-cooperation
On April 14, 2010 the Austrian Cartel Court released a decision1 imposing an overall fine of EUR 1.52 million on four companies participating in a cartel in the printing chemical sector. The investigation of the cartel by the Austrian Federal Competition Authority was triggered by a leniency application. As in other jurisdictions, if all requirements are fulfilled no fine will be imposed on the first leniency applicant for his cooperation. However, in this particular case, the first leniency applicant negligently failed to fulfil its obligation of full cooperation. Consequently, the Austrian Federal Competition Authority requested the Austrian Cartel Court to impose a fine on the first leniency applicant.
The first leniency applicant had submitted evidence of the cartel covering a certain period of time (period A). During the investigation of the Austrian Federal Competition Authority a second leniency applicant provided the authority with evidence covering a period of time right before the already known facts (period B). For this newly uncovered period of the cartel, the Austrian Federal Competition Authority granted the second leniency applicant immunity. This is in line with paragraph 26 of the European leniency program, which states that [i]f the applicant for a reduction of a fine is the first to submit compelling evidence in the sense of point (25) which the Commission uses to establish additional facts increasing the gravity or the duration of the infringement, the Commission will not take such additional facts into account when setting any fine to be imposed on the undertaking which provided this evidence. In addition, for period A, the second leniency applicant received a reduction of the fine, which amounts to the maximum possible reduction, namely 50%, for its cooperation.