The European Competition Network (ECN) brings together the European Commission and the National Competition Authorities ("NCAs") of all the EU Member States. In 2006, the ECN adopted its first Model Leniency Program ("MLP"), with a view to encourage Member States to introduce leniency programs and to promote convergence between them.
On 22 November 2012, the ECN published a revised version of the MLP. In particular, the ECN introduced refinements to the summary application system aimed at facilitating applications where it is not clear which competition authority will take the case forward. This summary application allows applicants to file only a short description of specified information concerning a cartel that has been reported to the Commission, rather than requiring complete applications with each NCA that could also be considered "well placed" to act. If the basic elements of the 2006 MLP remain unchanged, providing stability and certainty, a range of refinements were however introduced:
- Firstly, all leniency applicants will now be entitled to submit a summary application (previously, only the immunity applicant could benefit from this system);
- Secondly, the ECN introduces the notion of "summary application marker" in order to protect applicant's position under the respective national leniency programs. In fact, this marker operates as an indefinite marker during the phase of case allocation. The information needed to secure a marker is broadly equivalent to what is required to file a summary application;
- Thirdly, the revised MPL contains a non-exhaustive list of elements of cooperation that applicant need to comply with;
- Fourthly, the revised MPL clarifies that the obligation of non-disclosure will not be breached if the fact or contents of the leniency application is communicated to another competition authority;
- Fifthly, as the summary procedure can be done through either written or oral statements, the revised MLP clarifies that both statements will be offered the same level of protection.
Moreover, the ECN has prepared a uniform template for summary application, which leniency applicants will be able to use throughout the entire EU.
Finally, the ECN published a list of authorities which accept summary application filed in English or, if not allowed, details on applicable language requirements. It has to be noted that the NCA in Germany, the Netherlands, Denmark, Greece and Belgium are amongst the few accepting summary applications filed in English only, while Spain, France, Cyprus, Italy and Hungary are the five NCAs refusing any application made in another language than their official language(s).
In order to be operational, the principles set out in the new MLP need to be implemented under the respective leniency programs of ECN members either by introducing them to the programs or by implementing them in practice, as the case may be. By endorsing the refinements to the MLP, the ECN members have committed to use their best efforts to align their respective programs.
All the relevant documents with respect to the revised MLP are available at: http://ec.europa.eu/competition/ecn/documents.html.
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