Lawyers from Wardyński & Partners co-authored the “Poland Chapter” on Leniency Regimes – jurisdictional comparisons published by Thomson Reuters. Below we publish an excerpt from the publication.
What are the benefits of being ‘first in’ to cooperate?
Only a cartel member who is the first to file a leniency application with the Office for Competition and Consumer Protection (OCCP) and fulfils all additional conditions provided in the Act can obtain full exemption from the fine. Please note that being the first in does not necessarily mean that the leniency application should be filed with the OCCP before the opening of the antitrust proceedings. Being the first in refers to the fact that the applicant filed its leniency application before other involved undertakings. If the leniency application is filed after the OCCP opens antitrust proceedings but is the first leniency application to be filed, the first leniency applicant can still obtain full exemption if its evidence (which the OCCP Chairman did not have at the time the first leniency application is filed) enables the OCCP Chairman to issue a decision confirming infringement of Article 6 of the Act or Article 101 TFEU.
Even if the first leniency applicant does not fulfil some of the key conditions for full exemption (ie cooperating with the OCCP, not having been the initiator of the cartel), it can still obtain a 50 per cent reduction of the fine that would be imposed if it did not apply for leniency. To receive a 50 per cent reduction of the fine it needs however to: (i) present the OCCP Chairman, upon its own initiative, with proof which to a decisive extent will contribute to issuing a decision confirming the anticompetitive practice or to inform the OCCP Chairman as first applicant about the cartel; and (ii) cease participating in the anticompetitive agreement not later than on the date of applying for leniency (under the Act, the OCCP cannot request the leniency applicant to continue participating in the agreement for the benefit of the investigation). Please note also, that in such a situation, the first leniency applicant only theoretically does not have to cooperate with the OCCP Chairman. In practice, however, to fulfil an obligation of presenting the OCCP Chairman with proof which to a decisive extent will contribute to issuing a decision, active cooperation with the Chairman is necessary.
The fine imposed upon the first applicant who meets fine reduction requirements is reduced by 50 per cent and thus cannot exceed five per cent of his gross revenue earned in the accounting year preceding the year in which the fine is imposed. (Again, the maximum fine that can be imposed under the Act for cartel conduct is 10 per cent of the revenue earned in the accounting year preceding the year in which the fine is imposed.)
What are the consequences of being ‘second’? Is there an ‘immunity plus’ or ‘amnesty plus’ option?
The second leniency applicant can only benefit from a reduction of the fine, not from a full exemption. The amount of the fine may be decreased by up to 50 per cent and cannot be higher than 5 per cent of the second leniency applicant’s gross revenue earned in the accounting year preceding the year in which the fine is imposed.
If the applicant was not first to ‘come forth’ but was second to meet the two ‘reduction’ conditions, ie present the OCCP Chairman, upon his own initiative, with proof which to a decisive extent will contribute to issuing a decision confirming the anticompetitive practice and cease participating in the anticompetitive agreement not later than on the date of applying for leniency, the fine imposed would not exceed 5 per cent of the gross revenue earned in the accounting year preceding the year in which the fine is imposed and would be granted a reduction of the fine up to 50 per cent.
There is no ‘leniency plus’ or ‘amnesty plus’ option.
The OCCP Chairman will issue a written notification informing the leniency applicant of who has met the requirements of the Act and of the rank of his application in the queue in the given case (the OCCP dates and time stamps each leniency application upon submission). In order to protect leniency applicants, the fact of having submitted an application, the identity of the applicant, as well as all submissions made in the course of leniency proceedings are maintained in secrecy from other parties to the proceedings before the OCCP. This said, all that information is revealed just before closing the antitrust proceedings and issuing the decision.
Tomasz Wardyński, Sabina Famirska, Antoni Bolecki, Marcin Kulesza
The whole chapter concerning Poland authored by lawyers from Wardyński & Partners can be found in Leniency Regimes, Fourth Edition, pp. 253-266, Thomson Reuters, 2012