24 March 2015
A new programme allowing the grant of immunity from criminal prosecution for parties blowing the whistle on cartels was launched on 22 January 2015. The revised Cartel Immunity Programme (CIP) was published by the Competition and Consumer Protection Commission (CCPC – formerly the Competition Authority) and operates with immediate effect.
Cartel activities are criminal offences in Ireland. The CCPC does not have the power to levy fines and must instead take criminal proceedings through the courts in order to prove and punish breaches. Given the serious nature of the relevant offences (such as price-fixing and market-sharing), most cartel prosecutions are taken by the Director of Public Prosecutions (DPP). The DPP has discretion to grant immunity from prosecution provided certain conditions are fulfilled.
The CIP sets out the policy of the CCPC and the DPP in respect of applications for immunity from prosecution for cartel offences.
The CIP is an immunity programme rather than a leniency programme: if successful, an applicant can avail of full immunity from prosecution. It is an all-or-nothing approach, and is available only to the first member of a cartel qualifying for its protection. This is distinct from programmes operated by the European Commission and competition authorities in many other EU Member States, which provide for reductions in administrative fines on a sliding scale for the initial whistleblower and other parties co-operating with an investigation.
Applying for immunity
The revised CIP replaces a programme which has been in operation since 2001 and which has played an important part in a number of investigations by the then Competition Authority.
An applicant must comply with a number of requirements to be granted immunity, in particular obligations in respect of complete and timely co-operation with the investigation and providing full information on the relevant cartel activities.
The revised CIP sets out some important revisions and clarifications to the previous regime. A key change is that under the 2001 programme, applicants who had instigated the cartel or played the lead role in the illegal activity could not qualify for immunity. This is no longer the case. However, an applicant will not be able to avail of the CIP where it took steps to coerce another party to participate in the cartel.
The revised CIP also imposes certain new obligations, and clarifies some existing obligations, on immunity applicants. For example, it imposes a requirement to disclose all cartel offences of which the applicant is aware - the previous regime only imposed an obligation to disclose offences in which the applicant was involved. It also provides clarification on the process and on the information which much be disclosed in order to obtain immunity. These changes increase certainty for applicants.
The CCPC has made it clear that the investigation of cartels is one of its top priorities. The revised CIP will play a key role in enabling the CCPC/DPP to identify and prosecute such behaviour.