Is there an immunity program? If yes, what are the basic elements of the program? What is the significance of “first in” participation?
The leniency program was introduced by amending the Slovenian Prevention of Restriction of Competition Act (Competition Act) of 2009 and by the Decree on the Procedure for Granting Immunity and Reducing Fines for Cartel Violators (Official Gazette 112/09 and 2/14) (Decree) , which entered into force in January 2010. The Competition Agency of the Republic of Slovenia (the Agency) may grant immunity from fines or reduction of fines by a decision on a misdemeanor.
Full immunity from a fine may be granted only to an offender involved in a prohibited agreement who is the first to provide information and evidence if all of the following conditions are met:
- the perpetrator discloses his participation in the alleged cartel in full and in full;
- the infringer shall be the first to submit data and evidence which, in the opinion of the Agency, will enable inspection control in relation to the alleged cartel or finding a violation of Article 6 of the Competition Act or Article 101 of the Treaty on the Functioning of the European Union (TFEU);
- the perpetrator cooperates with the agency throughout the proceedings;
- the perpetrator shall cease to participate in the cartel as soon as the cooperation with the Agency begins, unless, in the Agency’s view, it would be contrary to the interest of the inspectorate; in
- the infringer did not force other undertakings to join or remain in the cartel.
An applicant who does not meet all the above conditions necessary to be granted full immunity from a fine may still apply for a reduction of the fine if the following conditions are met:
- the perpetrator provides evidence of his participation in the alleged cartel, which represents a significant added value compared to the evidence already available to the Agency;
- the perpetrator cooperates with the agency throughout the proceedings; in
- the perpetrator shall cease to participate in the cartel immediately after the beginning of the cooperation with the agency, unless, in the opinion of the agency, it would be contrary to the interest of the inspection.
An offender who meets all the conditions for a reduction of the fine and who is the first to present evidence shall have his fine reduced by 30 to 50 per cent; the perpetrator who meets all the conditions and will present evidence to another will be punished by a reduction of the fine from 20 to 30 percent; other offenders who meet all the conditions for a reduction of the fine and submit evidence are granted a reduction of the fine of up to 20 percent.
Is there a formal program that provides partial leniency for parties involved after applying for immunity? If yes, what are the basic elements of the program? If not, to what extent can further cooperating parties expect favorable treatment?
Further cooperating parties may be charged a reduced fine if the relevant conditions are met.
In second place
How is the other participating party treated? Is treatment with “immunity plus” or “amnesty plus” available? If so, how does it work?
In determining the amount of the reduction of the fine, the Agency shall take into account:
- the time of submission of evidence to the Agency;
- sequential order of applications; in
- the contribution of the evidence submitted to the finding of the infringement.
The fine set in the range may not be reduced below a certain limit.
There is no “immunity plus” or “amnesty plus” option.
Approaching the authorities
Are there deadlines for starting or completing an application for immunity or partial leniency? Are markers available and what are the terms and conditions that apply to them?
There are no deadlines for submitting a leniency application.
An application for a marker is only possible for applications for immunity from a fine. An offender who does not have the data to enable him to submit a complete application may apply for a marker in writing with a reasoned request on the form provided for in the Regulation. The Agency may award a label if it considers that the application is duly substantiated and shall also set a time limit within which the application must be completed in order to be considered in the order approved by the marker.
What is the nature, level and timing of the cooperation required or expected of an applicant for immunity? Is there any difference in requirements or expectations for the following counterparties seeking partial leniency?
The offender who requests leniency is obliged to cooperate with the Agency from the time of filing the application and throughout the administrative and misdemeanor proceedings, regardless of the sequential order. It will immediately:
- provide the Agency with all relevant information and evidence relating to the alleged cartel, all information that could contribute to the establishment of the facts;
- ensures the participation of employees and members of management or supervisory bodies; in
- not to destroy, falsify or conceal data or evidence and not to disclose the fact that the application or any of its contents were submitted before the Agency issued a statement of objections in the administrative procedure without the written permission of the Agency.
Even before filing an application, the infringer may not destroy, falsify or conceal evidence and directly or indirectly disclose the intention to file the application or its contents.
What protection of confidentiality does the applicant for immunity have? Does the following level of confidentiality protection apply to the following parties involved? What information will become public during the procedure and when?
According to the regulation, the application is considered a business secret, and the Agency may disclose the data and evidence from the application to the company in the infringement procedure only after the statement of objection in the administrative procedure has been submitted. The same level of protection applies to all December leniency.
Does the investigating or prosecuting authority have the option of concluding a plea agreement, settlement, deferred prosecution agreement (or non-prosecution agreement) or other binding solution with the party to resolve liability and penalties for the alleged cartel activity? What, if any, judicial or other oversight applies to such settlements?
Under the Competition Act, an undertaking against which administrative proceedings have been instituted may offer commitments to remedy the circumstances which make it possible to infringe. Commitments may be proposed by the deadline set by the Agency for comments on the statement of objections. If, in the opinion of the Agency, the proposed commitments eliminate the circumstances that lead to the likelihood of the existence of an infringement, the Agency shall commit the offered commitment by adopting a decision.
Defendant and employees
How will its current and former employees be treated when the defendant receives immunity or partial leniency?
An application for immunity or a reduction of a fine lodged by a legal person, an entrepreneur or an individual pursuing an economic activity shall also apply to his responsible persons, unless the application states otherwise. On the other hand, the role of the responsible person does not apply to a legal person, entrepreneur or individual engaged in an economic activity, unless otherwise stated in the application.
Cooperation with the executive
What are the practical steps for an immunity applicant or subsequent cooperating party in dealing with a law enforcement authority?
An applicant for immunity may submit an application to the Agency in writing (by post, fax or in person) in triplicate (one original and two copies) or by oral statement to the minutes at the Agency’s premises. The application forms are listed in the Regulation and are also available on the Agency’s website. The application must state whether the application is to be considered only for immunity or for a reduction of the fine, or both. Upon receipt of the application, the Agency shall inform the applicant whether the application meets the legal requirements for immunity or reduction of the fine and of his duty to participate. If the infringer meets all the conditions, the Agency grants immunity or reduces the fine with a decision on the misdemeanor.