ECJ: Member states leniency programmes function independently of the Commission’s

The ECJ handed down a judgement in Case C-428/14 – DHL Express (Italy) S.r.l/Autorità Garante della Concorrenza e del Mercato (AGCM) which clarified that there is no legal link between a leniency application to the European Commission and an application to a National Competition Authority.

DHL had been fined 6.6 million EUR by Italy’s AGCM for its participation in a road freight cartel and challenged this decision before the Italian courts. It claimed that the AGCM was wrong not to consider DHL’s immunity application to the European Commission, which had granted DHL conditional immunity for a freight forwarding cartel with regard to maritime, air and road transit. However, the Commission later decided to limit its investigation to air freight forwarding. The AGCM decided to initiate proceedings with regard to an Italian road transit cartel. DHL had filed a summary application to the AGCM but limited this application to an air and maritime transport cartel. It only extended its application to road transit after other cartelists, inter alia Schenker, had applied for leniency for a road transit cartel. The AGCM granted Schenker immunity and reduced DHL’s fine by 49 %.

DHL claimed that it should have been awarded first spot in Italy as well since it had been the first company to come clear with regard to freight forwarding cartels as evidenced by its application to the Commission. The AGCM should thus have considered the summary marker it received as connected to the Commission application and should have thus granted DHL immunity. However, the Court in a preliminary ruling held that National Competition authorities are bound by neither EU legislation nor an ECN standard when dealing with leniency applications.

According to the ECJ, leniency programmes are not connected to one another, but “coexist autonomously”, which means that DHL should have applied specifically for the Italian road transit cartel.

The ruling clarifies that Member States are free to introduce leniency programmes with different requirements and whose summary applications, if applicable, have no legal link to the application to the Commission. Potential applicants can thus not trust that a full application to the Commission serves as a “one-stop-shop” but must file summary applications in all potentially relevant jurisdictions and update these in case of new developments.