Immunity policy from liability for anti-competitive concerted practices

For businesses, this is a practical tool for managing antitrust risks: provided the application is submitted in a timely manner and supported by appropriate documentary evidence, it is possible to avoid a fine entirely or secure a significant reduction.

Which types of infringements does this policy cover?

The policy applies exclusively to concerted practices that have led or may lead to the prevention, elimination, or restriction of competition, in particular:

• setting prices or other terms for the purchase or sale of goods;
• restricting production, markets for goods, or investment, or establishing control over them;
• allocating markets or sources of supply (territorial, customer, or product allocation);
• distorting the results of tenders, auctions, competitions, or bids;
• exclusion from the market or restriction of market access;
• applying different conditions to equivalent transactions and engaging in other forms of concerted behaviour.

Vertical restrictions (for example, between a manufacturer and a distributor) may also be covered by the exemption.

What types of immunity are available?

1. Full immunity from fines is granted to the first applicant who:

• notified the AMCU of anti-competitive concerted practices prior to the issuance of preliminary findings in the case;
• ceased its participation in the anti-competitive concerted practices no later than the date of submission of the application for immunity (unless such participation is necessary to ensure the integrity of the proceedings);
• cooperated with the AMCU (providing accurate information promptly manner); and
• provided evidence not previously in the possession of the AMCU that is of material significance for the opening of the case or the adoption of a decision.

Full immunity is not available if the company initiated the cartel or compelled others to engage in anti-competitive concerted practices, regardless of whether other conditions are met.

2. A partial reduction in the fine is available to other participants in anti-competitive concerted practices (provided they are not the first applicant for full immunity):

• first applicant – up to 50%;
• the second applicant – up to 30%;
• subsequent applicants – up to 20%.

In such cases, the AMCU shall decide to reduce the fine if the relevant persons: 

• have voluntarily provided evidence of anti-competitive concerted practices that is of material significance for the decision in the case; and 
• such evidence is not available to the AMCU.

How does the procedure work in practice?

As a general rule, the relevant procedure begins with a participant in anti-competitive concerted practices submitting an application to the AMCU for immunity from liability. The application may be submitted in paper or electronic form.

The application must contain information regarding all participants in anti-competitive concerted practices known to the applicant, a detailed description of such practices, and other mandatory elements specified in the Procedure for exemption from liability for violations of the legislation on the protection of economic competition in the form of anti-competitive concerted practices.

If the application does not meet the established requirements and cannot be considered, the application shall be left pending, and the AMCU shall notify the applicant within 15 calendar days of receiving it.

If the AMCU concludes that the available data, including that received from the applicant, is sufficient to issue an order to commence proceedings, an order to commence proceedings shall be issued within 60 calendar days of the date of receipt of the application.

Such cases are examined by the AMCU within a reasonable period, but not exceeding three years from the date of the order to commence proceedings.

A decision on full or partial exemption from liability for the infringement committed is taken following the outcome of the proceedings.

In practice, the procedure may include several additional steps:

• Obtaining confidential advice from the AMCU

A participant in anti-competitive concerted practices, or their authorised representative, prior to submitting an application for exemption from liability or an application for a marker, is entitled to contact the AMCU to obtain preliminary advice on the information and documents required for the submission and consideration of the relevant application. 

• Obtaining a marker from the AMCU

If, on the date of applying to the AMCU for immunity from liability, the applicant does not have sufficient information to submit the relevant application but can provide such information at a later date, they may apply to the AMCU for a marker in order to secure priority in reporting their participation in anti-competitive concerted practices.

This records the application and secures priority in the queue for immunity for a period of 20-60 days, which may be extended to 90 days.

Consequently, companies are able to use the procedure to avoid or reduce fines for participation in anti-competitive concerted practices through timely notification, the provision of new evidence, and proper cooperation with the AMCU, including priority in the queue for immunity via a marker and the possibility of confidential consultations prior to submitting an application.

The GOLAW team provides support to businesses in the field of antitrust and competition law, particularly regarding the application of leniency programmes. 

We help assess antitrust risks, develop the right strategy, prepare and submit an application to the AMCU, ensure confidentiality and provide support at all stages of the investigation into anti-competitive concerted practices.