ICC Proposal to ICN for a one-stop-shop for leniency markers

ICC Proposal to ICN for a one-stop-shop for leniency markers

The issues paper on the creation of a one-stop-shop for leniency markers puts forward a proposal to create a one-stop-shop marker system to provide a mechanism for applicants to seek leniency with a marker application before a sole agency.

The proposal seeks to create a one-stop-shop marker system providing a mechanism for applicants to apply for leniency with a marker application before a single agency, thereby avoiding conflict with another applicant and becoming “first-to-file” in another jurisdiction. 

This would enable a successful applicant to reserve its place in the queue in all jurisdictions participating in the system by applying for the marker in only one of them. While in general
the proposal of the one-stop-shop marker system might be valuable and beneficial to large multinational companies, it can also, to a certain extent, jeopardize incentives to leniency
programmes at national level. In addition, the resulting ―forum shopping‖ to identify the ―sole agency‖ for the marker application might lead to the overexposure of those competition
authorities which are already leading in the public enforcement of competition law worldwide due to a number of factors such as resources and independence from political influence.

The issue has recently been analysed by the OECD (DAF/COMP/WP3(2014)9, Use of Markers in Leniency Programmes) which studied the background and implications of this step forward in international cooperation in antitrust matters. The need to address such an issue has become increasingly compelling further to the judgement of 20 January 2016 (Case C–428/14, DHL) by which the European Court of Justice definitively held that, in the absence of an European Union- wide system of fully harmonised leniency programmes, an application for leniency to a given authority (including the European Commission) is not to be considered as an application for leniency to any other authority.

The proposed system would be voluntary for agencies and also for applicants, who could well decide to ―opt in‖ to the one-stop marker and is based on the mutual recognition of the
marker application.

However, once the opting-in applicant has made a valid marker request, the mechanism would allow the agency which has received and cleared the marker application to immediately notify all the other jurisdictions explicitly mentioned by the applicant that the one-marker had been granted. In practice, the marker applicant should clearly specify the jurisdictions covered by the marker and to be therefore notified based on a certain minimum information which he declares to have in relation to those jurisdictions.

This could easily be done through the creation of a platform where the agency receiving the application informs all the other requested agencies not only of the exact timing of the filing,
but also of the minimal information necessary to identify the cartel. To avoid losing its priority, the agency concerned should be entitled to ask the applicant to integrate its application in case of lack of some minimal information, or presence of clerical errors, which should not put in question its validity from the outset.

Subsequently, the successful marker applicant should have to complete its leniency application in all the affected jurisdictions under the substantive standard required by each of
these jurisdictions within an agreed time period provided under the one-stop-shop system. Consequently, the one-stop-shop marker system cannot be applied in the jurisdictions where
formal proceedings have been already opened.

In this regard, it should be clear that participating in the one-stop process does not constitute a general waiver for all purposes. The applicant should be free to negotiate waivers in each
of the jurisdictions in which it has applied with respect to its continuing its participation in the leniency procedures.

An important example of one-stop is provided by the international patent regulations, in accordance with the Paris Convention Treaty (“PCT”) signed by more than 140 countries. This regulatory system includes an international patent application that provides “first to file” protection to the first applicant under the PCT regardless of where the patent has been filed: in a nutshell, the applicant gains protection, recognized by participating PCT jurisdictions, from the date of the first filing.

Thus, the same first-to-file approach could be regarded as a benchmark in order to establish a one-stop-shop for leniency markers. Under this scenario, the first applicant to file with the one-stop-shop would be granted a marker date that would be respected by the agencies of jurisdictions other than where the application was filed.

The practical effect of the proposed system is that, pending the marker application, none of the other notified agencies can open an investigation before the applicant completes the leniency application within the due deadline.