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Rules on immunity from fines and reduction of fines for the parties to prohibited agreements

COMPETITION COUNCIL OF THE REPUBLIC OF LITHUANIA
RESOLUTION No. 1S-27
28 February 2008, Vilnius

Acting in accordance with Art. 19(1)(7) of the Law on Competition (Official Gazette, 1999, No. 30-856) the Competition Council of the Republic of Lithuania has resolved:

To approve “Rules on Immunity from fines and reduction of fines for the parties to prohibited agreements” (attached).

Chairman
Rimantas Stanikūnas

APPROVED
by Resolution No. 1S-27 of 28 February 2008
of the Competition Council of the Republic of Lithuania

RULES ON IMMUNITY FROM FINES AND REDUCTION OF FINES FOR THE PARTIES TO PROHIBITED AGREEMENTS

GENERAL PROVISIONS

  1. These Rules on Immunity from fines and reduction of fines for the parties to prohibited agreements (thereinafter – the Rules) regulate the procedure of the immunity from fines imposed on parties to prohibited agreements for the infringements of Art. 5 of the Law on Competition of the Republic of Lithuania (thereinafter – the Law on Competition) and Art. 81 of the EC Treaty, in accordance with Art. 43(1) of the Law on Competition and the procedure of the reduction of fines in accordance with the section III of the Rules on Fines imposed for infringements of the Law on Competition of the Republic of Lithuania, approved by the Resolution No. 1591 of the Government of the Republic of Lithuania of 6 December 2004. The Competition Council of the Republic of Lithuania (thereinafter – the Competition Council) shall apply these Rules when estimating the conditions provided for in the mentioned norms of law.
  2. The procedure of the immunity from fines or reduction of fines established by the Rules shall be applicable only in cases of prohibited agreement of competitors, i.e. horizontal agreement.

IMMUNITY FROM A FINE OF A PARTY TO A PROHIBITED AGREEMENT

  1. An undertaking which is a party to a prohibited agreement (i.e. an agreement, complying with the features provided for in Art. 5 of the Law on Competition or/and Art. 81 EC), shall be granted immunity from a fine, which would otherwise have been imposed, if all the following conditions are met:
    1. an undertaking submits information before the initiation of investigation of the agreement;
    2. an undertaking is the first of all the parties to an agreement to submit information;
    3. an undertaking submits all the information known to it that concerns the agreement and cooperates with the Competition Council during the investigation;
    4. an undertaking was not the initiator of the prohibited agreement and did not encourage other undertakings to participate in the agreement.
  2. Condition in item 3.1 is met if at the time of the application to the Competition Council, the Competition Council has not yet passed the resolution to initiate the investigation regarding the compliance of the alleged prohibited agreement with Art. 5 of the Law on Competition and/or Art. 81 EC.
  3. Condition in item 3.3 is met if an undertaking:
    1. submits information and evidence to the Competition Council that enables the Competition Council to carry out a targeted inspection in connection with the alleged prohibited agreement or is sufficient to establish an infringement of Art. 5 of the Law on Competition and/or Art. 81 EC;
    2. ends its involvement in a prohibited agreement immediately following its submission of information to the Competition Council, except for what would, in the Competition Council’s view, be reasonably necessary to preserve the integrity of the investigation;
    3. from the moment of submission of information to the Competition Council until the end of the investigation cooperates with the Competition Council without reservation and on a continuous basis. This cooperation purports that an undertaking:
      1. provides the Competition Council promptly with all relevant information and evidence that comes into its possession or becomes known to it;
      2. answers promptly to any request of the Competition Council, that may contribute to the establishment of the facts relevant to the prohibited agreement;
      3. assures the possibility to make current and, if possible, former employees and directors available for interviews;
      4. does not destroy, falsify and conceal relevant information and evidence relating to the alleged prohibited agreement;
      5. does not disclose the fact of its application and content of it until the Competition Council has issued a notice of investigation to the parties (unless otherwise agreed with the Competition Council).
  4. An undertaking is not granted immunity from a fine if during the investigation it is established that the undertaking, when contemplating of or making its application to the Competition Council, destroyed, falsified or concealed evidence of the alleged prohibited agreement and/or disclosed the fact or any of the content of its application, except to other competition authorities of the EU and/or European Commission.
  5. When exercising the requirements of item 5.1, an undertaking indicates:
    1. its name and address of the office;
    2. information concerning other parties to an alleged prohibited agreement (names, addresses etc.);
    3. the names, positions, office locations and, where necessary, home addresses of all natural persons who, to the undertaking’s knowledge, are or have been involved in the alleged prohibited agreement, including those individuals which have been involved in the prohibited agreement on the undertaking’s behalf;
    4. a detailed description of an alleged prohibited agreement, including:
      1. the product or service concerned;
      2. the geographic scope affected by the alleged prohibited agreement;
      3. the duration of the alleged prohibited agreement;
      4. the nature of the alleged prohibited agreement (for instance, agreement on prices, market sharing etc.).
    5. evidence relating to the alleged prohibited agreement in possession of the undertaking or available to it;
    6. information on which other competition authorities, inside or outside the EU, have been approached or are intended to be approached in relation to the alleged prohibited agreement.

REDUCTION OF A FINE FOR A PARTY TO A PROHIBITED AGREEMENT

  1. A fine, calculated for an undertaking which is a party to a prohibited agreement, shall be reduced by 50-75 %, if by the time the Competition Council has had already initiated the investigation concerning the alleged infringement of Art. 5 of Law on Competition and/or Art. 81 EC, an undertaking:
    1. is the first of the parties to a prohibited agreement to submit the Competition Council with all information concerning a prohibited agreement which is known to it;
    2. submits the evidence of a prohibited agreement of competitors which the Competition Council does not possess and which is significant to prove the prohibited agreement. The significance of the evidence is estimated having regard to the direct proof of it as for conclusion of a prohibited agreement or intention to conclude a prohibited agreement. Usually written evidence originating from the period of a prohibited agreement, as well as direct evidence confirming the participation of other undertakings in the prohibited agreement shall be regarded as significant. Indirect evidence, evidence originating after the period of the prohibited agreement or which do not confirm the participation of other undertaking therein, or explanations of the undertakings, unsubstantiated by no any means may be regarded as significant subject to their nature and content.
    3. was not the initiator of the prohibited agreement and did not coerce other undertakings to participate in the agreement;
    4. exercises all the conditions provided for in items 5.2 and 5.3 of the Rules.
  2. A fine, calculated for an undertaking which is the initiator of the prohibited agreement or which coerced other undertakings to participate in the prohibited agreement, shall be reduced by 50 %, if the undertaking:
    1. satisfies the conditions provided for in items 3.1-3.3 of the Rules;
    2. exercises all the conditions provided for in items 4 and 5 of the Rules.
  3. A fine, calculated for an undertaking which is a party to a prohibited agreement and which does not satisfy the conditions provided for in items 8 and 9 of the Rules, shall be reduced by 20-50 %, if the undertaking:
    1. submits the evidence of a prohibited agreement which the Competition Council does not possess and which is significant to prove the prohibited agreement, as explained in item 8.2 of the Rules;
    2. exercises all the conditions provided for in items 5.2 and 5.3 of the Rules.
  4. A fine imposed on the undertaking shall not be reduced if during the investigation it is established that the undertaking when contemplating of or making its application to the Competition Council, destroyed, falsified or concealed evidence of the alleged prohibited agreement and/or disclosed the fact or any of the content of its application, except to other competition authorities of the EU and/or European Commission.
  5. In order to determine the level of fine reduction, the Competition Council will take into account the time at which the evidence was submitted (including whether the applicant was the first, the second or the third etc. to notify the Competition Council) and the significance of the evidence for proving the prohibited agreement.
  6. If, after the Competition Council has initiated the investigation of the alleged infringement of Art. 5 of the Law on Competition and/or Art. 81 EC, the undertaking is the first to submit the evidence to the Competition Council which it does not posses and which confirms additional facts increasing the gravity and/or longer duration of the infringement, the Competition Council, in order to set the ultimate fine for an undertaking, shall not have regard to such facts.

PPROCEDURE OF THE EXAMINATION OF THE REQUEST TO QUALIFY FOR THE IMMUNITY FROM A FINE OR REDUCTION OF A FINE

  1. An undertaking, in order to take advantage of the immunity from fines or the reduction of fines provided for in the Rules, must apply in writing to the Competition Council and submit it a request to be immune from a fine or to reduce a fine, and all relevant information and/or evidence required by the Rules. The type of request (immunity from a fine or reduction of a fine) must be clearly specified.
  2. Before submitting an application, the representatives of an undertaking may anonymously refer to the Competition Council in order to receive an informal recommendation of a general character on the application of the Rules. No any rights and obligations, concerning concrete requests submitted in compliance with the Rules or concrete investigations carried out by the Competition Council in order to establish an infringement of Art. 5 of the Law on Competition and/or Art. 81 EC, shall be granted by this informal reference to an undertaking or to the Competition Council. Such consultations are provided by telephone numbers of the Cartel Division that are indicated on the Competition Council’s website, and in the premises of that Division.
  3. A request to be immune from a fine or to reduce a fine is registered in the Competition Council upon its receipt by specifying date and time of its receipt. If an undertaking requires, date and time of the receipt of the request shall also be specified on the copy of the request that remains at the undertaking or a note confirming date and time of the receipt of the request shall be issued.
  4. An undertaking wishing to apply for immunity from a fine or reduction of a fine as provided for in the Rules, may in the first place inform the Competition Council of its intention and apply for setting a period within which it would collect all necessary information and evidence. Thereby an undertaking submits the Competition Council a written application, in which following items must be specified:
    1. name and address of the office of the undertaking;
    2. information concerning other parties to an alleged prohibited agreement (names, addresses etc.); 
    3. information concerning the relevant product and service and relevant geographic area(s);
    4. the duration of the alleged prohibited agreement;
    5. the nature of the alleged prohibited agreement (for instance, agreement on prices, market sharing etc.).
  5. A detailed descriptive list of the evidence which the undertaking proposes to disclose at a later agreed date must be attached to the application as provided for in item 17 of the Rules. The undertaking shall also inform the Competition Council on other past or possible future applications to be immune from a fine or reduction of a fine to competition authorities of other states in relation to the alleged prohibited agreement.
  6. If an undertaking submits an application to the Competition Council in accordance with items 17 and 18 of the Rules, the head of Cartel Division of the Competition Council having regard to particular circumstances of the case, sets a period (usually up to 15 calendar days) within which an undertaking must submit all lacking information and evidence, and of which an undertaking is informed as promptly as possible. If an undertaking submits the lacking information and evidence within the period set, the information and evidence shall be deemed to have been submitted on the day of the receipt of the application in the Competition Council as provided for in item 16.
  7. Within 30 days from the receipt of the application to be immune from a fine in the Competition Council, the Competition Council adopts a decision that the application to be immune from a fine meets the conditions set in items 3.1, 3.2, and 5.1 of the Rules on a conditional basis, and informs an applicant thereafter by also specifying that it may be immune from a fine if all the conditions provided for in section II of the Rules are fulfilled.
  8. If the Competition Council adopts a decision as provided for in item 20 of the Rules that the application to be immune from a fine does not meet the conditions set in items 3.1, 3.2 and 5.1, an undertaking which submitted the application is informed of such a decision and notified that it may withdraw the evidence disclosed for the purpose of its immunity application or request to consider it under the conditions for reduction of a fine set forth in section III of the Rules.
  9. Procedure set forth in items 20 and 21 of the Rules is mutatis mutandis applicable to applications to reduce a fine by 50 % which undertakings submit in accordance with item 9 of the Rules.
  10. Assessment of the application to be immune from a fine or to reduce a fine under sections II or III of the Rules and conditions for such leniency set forth thereto is given in the Notice on the accomplished investigation.
  11. If applications to be immune from a fine or to reduce a fine relating to the same alleged prohibited agreement were received from several undertakings, the assessment of such applications is given in the Notice on the accomplished investigation having regard to the moment when each of the applications was received. The first application is assessed primarily, whereas other applications shall be assessed having regard to the circumstances which have been established up to the receipt day of each application.
  12. Conclusive decision as to be immune from a fine or to reduce a fine and exact amount of it or refuse to grant immunity from a fine or reduction of a fine in accordance with the Rules shall be adopted by the Competition Council in the hearing of the case concerning investigation of the infringement of law, in which a decision to establish an infringement of Art. 5 of the Law on Competition and/or Art. 81 EC and impose sanctions provided for in the Law on Competition shall be adopted.

SIMPLIFIED APPLICATION TO QUALIFY FOR IMMUNITY FROM A FINE

  1. If the European Commission is a particularly well placed institution to investigate the case relating to a concrete prohibited agreement under the Commission Notice on cooperation within the Network of Competition Authorities of 27 April, 2004, item 14 (when one or several agreements or practices, including networks of similar agreements or practices, have effect on competition in more than three Member States) and an undertaking has already submitted or contemplates submitting an application to be immune from a fine to the European Commission, such an undertaking can submit a simplified application to be immune from a fine to the Competition Council.
  2. An undertaking must indicate in the simplified application:
    1. its name and address of the office;
    2. information concerning other parties to an alleged prohibited agreement (names, addresses etc.);
    3. information concerning the relevant product and service and relevant geographic area(s);
    4. the duration of the alleged prohibited agreement;
    5. the nature of the alleged prohibited agreement (for instance, agreement on prices, market sharing etc.);
    6. Member State(s) in which the evidence relating to the prohibited agreement allegedly locate
    7. information, concerning already submitted or likely to be submitted, applications to be immune from a fine, related to an alleged prohibited agreement.
  3. The simplified application to be immune from a fine is registered in the Competition Council upon receipt, indicating its receipt date and time. The head of Cartel division of the Competition Council issues a note in 10 workdays at the latest, in which the fact of the receipt of application and the fact that an undertaking is the first to qualify for immunity from a fine in the pending case are specified.
  4. If, after receiving a simplified application, the Competition Council decides to demand for more detailed information, an undertaking is obliged to submit such information immediately. If a decision to investigate the case by the Competition Council is adopted, the Competition Council sets a period within which the undertaking must provide it with all necessary information and evidence. If the undertaking provides the lacking information and evidence within the set period, the information and evidence are deemed to be provided for to the Competition Council on the day of the receipt of the simplified application.

FINAL PROVISIONS

  1. The fact of the application submitted by an undertaking to be immune from a fine or to reduce a fine and the content herein shall be treated confidentially and undisclosed to other parties to an alleged prohibited agreement or other persons until the completion of the investigation of the prohibited agreement, unless the undertaking itself has permitted such information to be disclosed. Upon completion of the investigation of the alleged agreement, the parties to the proceedings may be provided with the access to the content of the application to be immune from a fine or to reduce a fine to the effect of exercising right to defence.
  2. The fact that immunity from a fine or reduction of a fine is granted cannot protect an undertaking from the civil law consequences of its participation in a prohibited agreement.
  3. Applications to be immune from a fine or to reduce a fine shall not be considered if submitted to the Competition Council after the investigation is completed and the parties to the proceedings are sent a Notice on the accomplished investigation, or which do not meet other conditions for being immune from a fine or to reduce a fine provided for in sections II and III of the Rules. Such applications of the undertakings may be considered as a circumstance extenuating the liability of an undertaking in accordance with Art. 42(2) of the Law on Competition.
Last updated: 26 07 2017