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PR(02)11: EFTA Surveillance Authority adopts revised leniency policy for companies which give information on cartels


The EFTA Surveillance Authority has adopted a new leniency policy to create greater incentives for companies to blow the whistle on the most serious violations of the EEA antitrust rules.

Secret cartels are the most serious violation of the EEA competition rules since they invariably result in higher prices.  Whether they take the form of price-fixing or market-sharing agreements, the allocation of production quotas or the rigging of bids, they harm industry and consumers in the EEA.  Such illicit behaviour leads in the long term to a loss of competitiveness and reduced employment. That is why such cartels are expressly prohibited in Article 53 of the EEA Agreement.

The detection and punishment of cartels is an important objective of the EFTA Surveillance Authority.  The greatest challenge in the fight against hard-core cartels is to counter the increasingly sophisticated means at the companies' disposal to conceal collusive behaviour. Under the new rules the Authority will grant total immunity from fines to the first company to submit evidence on a cartel unknown to, or unproved by the Authority, where the Authority is competent to handle the case under the EEA Agreement. The leniency policy updates a previous 1997 document and aligns the Authority’s policy in this field with the revised approach of the European Commission, as required under the legal framework of the EEA Agreement.  The new policy will increase the legal certainty provided to companies and will enhance overall transparency and predictability.

Main aspects of the leniency revision

The EFTA Surveillance Authority will grant complete immunity from fines:

  • to the first member of the cartel to inform the Authority of an undetected cartel by providing sufficient information to allow the Authority to launch an inspection on the premises of the suspected companies; or
  • to the first member of the cartel to provide evidence that enables the Authority to establish an infringement, when the Authority is already in possession of enough information to launch an inspection, but not to establish an infringement. This type of immunity is available only in cases where no other cartel member has qualified for immunity under the first scenario.

Consequently, immunity from fines will reward firms that provide important insider information and evidence to the Authority at two crucial stages of a cartel investigation: either with the disclosure of a cartel previously undetected or by supplying unknown crucial evidence that will lead to the successful prosecution of the cartel members.

To obtain full immunity, a company must cooperate fully and on a continuous basis with the Authority, submit all evidence in its possession, put an end immediately to the infringement and must not have taken steps to coerce other undertakings to participate in the cartel.  A company fulfilling the conditions for immunity will henceforth receive a letter from the Authority confirming that immunity will be granted if the conditions set out in the notice are observed.

As before, the new notice provides for a reduction of fines for companies that do not qualify for immunity but provide evidence that represents "significant added value" to that already in the Authority’s possession and terminate their involvement in the cartel.  The first company fulfilling these conditions will receive a reduction of 30-50% of the fine which would otherwise have been imposed, the second successful applicant 20-30% and subsequent successful applicants will receive a reduction of up to 20%.  Within each of these bands, the final amount of any reduction will again depend on the time at which evidence was provided and the quality of this evidence. The extent of co-operation provided by the company throughout the Authority’s procedure will also be taken into account.  Successful applicants for reduction of fines will also be given a letter indicating the band to which they will, in principle, be entitled.  This letter will be sent no later than the day the statement of objections is notified.

Leniency applications

Companies wishing to approach the EFTA Surveillance Authority in order to benefit from the new notice may do so directly or through an intermediary, such as a legal adviser.

For the purpose of filing an application for leniency initial contact should be made through the dedicated e-mail address of the Authority’s Competition and State Aid Directorate: - the use of this e-mail address ensures that the precise time and date of the contact is duly recorded and that the information is treated with the utmost confidentiality within the Authority.  If necessary, initial contact can in exceptional cases also be made through the following telephone number: +32 2 286 1850.

Entry into force and publication of the new notice

The new notice comes into force on 12 June 2002 and will be applicable to companies which file for leniency in a cartel case which the EFTA Surveillance Authority is competent to handle under the EEA Agreement, as long as no other firm is already co-operating with the Authority in an investigation into that same cartel.

The notice will be published in the Official Journal of the European Communities and in the EEA Supplement thereto in due course.  In the interim please contact the EFTA Surveillance Authority’s Competition and State Aid Directorate at for more information.

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