The Commission's Leniency Programme
Article 1
Regulation (EC) No 773/2004 is amended as follows: (1) the following Article 4a is inserted: ‘Article 4a The Commission's Leniency Programme 1. The Commission may set the requirements and cooperation conditions under which it may reward undertakings that are or have been party to secret cartels, for their cooperation in disclosing the cartel and facilitating the establishment of an infringement, with immunity from fines or a reduction in fines which would otherwise be imposed under Article 23(2) of Regulation (EC) No 1/2003 (the Commission leniency programme). Immunity from fines may be granted to the undertaking that is the first to submit evidence which in the Commission's view would enable it to carry out a targeted inspection or find an infringement of Article 101 of the Treaty in connection with the alleged cartel. A reduction in fines may be granted to undertakings which provide the Commission with evidence of the alleged infringement which represents significant added value with respect to the evidence already in the Commission's possession. The Commission will only grant immunity from or a reduction of the fine under its leniency programme if, at the end of the administrative proceedings, the undertaking has met the requirements and cooperation conditions set out in the leniency programme. Those may cover, among others, the type of information and evidence the undertakings are required to submit and the further cooperation expected from the undertakings during the administrative proceedings. 2. In order to qualify for immunity from or reduction of the fine which would otherwise be imposed, undertakings shall provide the Commission with voluntary presentations of their knowledge of a secret cartel and their role therein, which may be also in the form of voluntary presentations of the knowledge of former or current employees or representatives of the undertaking (leniency corporate statements). Such leniency corporate statements shall be drawn up specifically for submission to the Commission with a view to obtaining immunity from or reduction of fines under the Commission's leniency programme. 3. The Commission will offer parties appropriate methods of providing leniency corporate statements other than by written submission, including orally. Oral corporate statements may be recorded and transcribed at the Commission's premises. The undertaking shall be granted an opportunity to check the technical accuracy of the recording of its oral statement at the Commission's premises, and, where necessary, to correct the substance of the statement without delay. The rules in this Regulation on leniency corporate statements shall apply to such statements irrespective of the medium on which they are stored. Pre-existing information, i.e. evidence that exists irrespective of the Commission proceedings and that is submitted to the Commission by an undertaking in the context of its application for immunity from or reduction of the fine, is not part of a leniency corporate statement.’; (2) in Article 8, paragraph 2 is deleted; (3) in Article 10a(2), the third subparagraph is replaced by the following: ‘Should settlement discussions progress, the Commission may set a time limit within which the parties may commit to follow the settlement procedure by introducing settlement submissions reflecting the results of the settlement discussions and acknowledging their participation in an infringement of Article 101 of the Treaty as well as their liability. These settlement submissions shall be specifically drawn up by the undertakings concerned as a formal request to the Commission to adopt any decision in their case following the settlement procedure. Before the Commission sets a time limit for the introduction of settlement submissions, the parties concerned shall be entitled to have the information specified in the first subparagraph, disclosed to them, upon request, in a timely manner. The Commission shall not be obliged to take into account settlement submissions received after the expiry of that time limit. The Commission will offer parties appropriate methods of providing settlement submissions other than by written submission, including orally. Oral settlement submissions may be recorded and transcribed at the Commission's premises. The undertaking shall be granted an opportunity to check the technical accuracy of the recording of its oral submission at the Commission's premises, and, where necessary, to correct the substance of their submission without delay. The rules in this Regulation on settlement submissions shall apply to settlement submissions irrespective of the medium on which they are stored.’; (4) Article 15 is amended as follows: (a) the title is replaced by the following ‘Article 15 Access to the file’; (b) paragraph 1a is replaced by the following: ‘1a. After the initiation of proceedings pursuant to Article 11(6) of Regulation (EC) No 1/2003 and in order to enable the parties to introduce settlement submissions, the Commission shall disclose to them the evidence and documents described in Article 10a(2) upon request and subject to the conditions established in the relevant subparagraphs. In view thereof, when introducing their settlement submissions, the parties shall confirm to the Commission that they will only require access to the file pursuant to paragraph 1 after the receipt of the statement of objections, if the statement of objections does not reflect the contents of their settlement submissions. Where settlement discussions have been discontinued with one or more of the parties, such party shall be granted access to the file pursuant to paragraph 1 when a statement of objections has been addressed to it.’; (c) the following paragraph 1b is inserted: ‘1b. Access pursuant to paragraph 1 or 1a to a leniency corporate statement within the meaning of Article 4a(2) or to a settlement submission within the meaning of Article 10a(2), shall only be granted at the premises of the Commission. The parties and their representatives shall not copy the leniency corporate statements or settlement submissions by any mechanical or electronic means.’; (d) paragraph 4 is deleted; (5) after Article 16, the following Chapter VIa is inserted: ‘CHAPTER VIa Article 16a 1. Information obtained pursuant to this Regulation shall only be used for the purposes of judicial or administrative proceedings for the application of Articles 101 and 102 of the Treaty. 2. Access to leniency corporate statements within the meaning of Article 4a(2) or to settlement submissions within the meaning of Article 10a(2) shall be granted only for the purposes of exercising the rights of defence in proceedings before the Commission. Information taken from such statements and submissions may be used by the party having obtained access to the file only where necessary for the exercise of its rights of defence in proceedings: (a) before the European Union courts reviewing Commission decisions; or (b) before the courts of the Member States in cases that are directly related to the case in which access has been granted, and which concern: (i) the allocation between cartel participants of a fine imposed jointly and severally on them by the Commission; or (ii) the review of a decision by which a competition authority of a Member State has found an infringement of Article 101 TFEU. 3. The following categories of information obtained pursuant to this Regulation shall not be used in proceedings before national courts until the Commission has closed its proceedings against all parties under investigation by adopting a decision pursuant to Article 7, 9 or 10 of Regulation (EC) No 1/2003 or has otherwise terminated its proceedings: (a) information that was prepared by other natural or legal persons specifically for the proceedings of the Commission; and (b) information that the Commission has drawn up and sent to the parties in the course of its proceedings.’.