1. Leniency Programme Igor Pospíšil Director of the Cartel Department St. Martin Conference 2009 November 12, 2009

2. Agenda of presentation I.Development of Leniency Programme in CR and its current application II.Access to File and Leniency III.Cartel Criminalization and Leniency IV.Multijurisdictional issues V.Leniency and Settlement

3. I. Development of Leniency Programme in CR and its current practice

4. Previous Leniency Programme From July 2001 to June 2007 Included also vertical agreements Immunity granting – administrative discretion 4 applications

5. Current Leniency Programme since June 28, 2007 Based on ECN Model Leniency Programme Differences (ECN Model Leniency Programme - Report on Assessment of the State of Convergence)  Immunity or fine reduction cannot be granted to the applicant, who initialized cartel, who coerced others to participate on a cartel, or remain in it and who was a leader of a cartel  The applicant has to end his participation in cartel immediately after filing an application  The application could be submitted orally (para. 2.1.2 programme) – inaccuracy in the report

6. Current situtation of Leniency Applications

8. … worth to mention more immunity applicants in one case Down-raids together with EC Leniency Working Group – ECN, Working Group Cartels Web address – http://www.compet.cz/hospodarska- soutez/zakazane-dohody-a-zneuziti-dominance/leniency- program/ presents programme for public; contacts for applications’ submission or for consultationhttp://www.compet.cz/hospodarska- soutez/zakazane-dohody-a-zneuziti-dominance/leniency- program/

9. II. Leniency and access to file

10. Former legal regulation till September 1, 2009 under Administrative Procedure Code (APC) Non-accessible documents - containing business secret Documents containing business secret – accessible for parties when used as a proof for the decision

11. Current approach of the Office In the launched proceedings the Leniency application is considered as business secret Documents provided in Leniency application are not accessible to parties until the Statement of Objection is issued (proceedings opened under the APC)

12. Current legal regulation Access to file – special provision in the Act on Protection of Competition (Art. 21c) The parts of file containing business secret are not accessible The documents without business secret could be requested

13. III. Cartel Criminalization and Leniency

14. Cartel as Criminal Offence Participation in cartel could be criminal offence under Art. 127 of Criminal Code from 1 st January 2010 – new Criminal Code - under Art. 248 para. 2 - explicitly cartel as the criminal offence Cartel - criminal offence under both Acts The duty to report a crime – Criminal Procedure Act (Art. 8), does not change Can it threat Leniency? - no explicit link to effective repentance

15. IV. Multijurisdictional aspects

16. Most of submitted applications are proceed by more CA Subjective period vs. waiting for EC statement of objection Ne bis in idem – judgement of the Supreme Administrative Court - two different torts Threat of inconsistency - parties to proceedings, proofs, definition of relevant market, relevant period Fine calculation – how to set a fine in market-sharing cases, when some participants did not supply goods to CR

17. V. Leniency and Settlement

18. The settlement as means of proof shall not apply in horizontal agreement cases, where the leniency could be used Settlement as a procedural tool (principles of art. 6 APC – promptness and efficiency of procedure) could be used Different interpretation – settlement could threat Leniency functioning - especially the reduction of fine

19. Thank you for your attention. Other information: Igor Pospíšil igor.pospisil@compet.cz www.compet.cz