On 10 September 2015, Advocate General Wathelet of the European Court of Justice ("ECJ") issued an opinion on a preliminary reference from an Italian court regarding the relationship between leniency applications made under the European Commission's leniency notice and summary applications made to national competition authorities ("NCAs") in connection with the same cartel (Case C-428/14 DHL Express (Italy) Srl and DHL Global Forwarding (Italy) Srl v Autorità Garante della Concorrenza e del Mercato).
In 2007, DHL Express (Italy) Srl and DHL Global Forwarding (Italy) Srl (together "DHL") submitted an application for immunity to the European Commission in relation to their participation in an international air, maritime and road freight forwarding cartel and were granted full immunity from fines. The Commission later decided to pursue the cartel only with regards to international freight forwarding by air.
At the same time, relying on Paragraphs 24 to 26 of the Model Leniency Notice of the European Competition Network ("ECN"), DHL submitted a parallel summary leniency application to the Italian NCA in regards to the same cartel. The Italian NCA decided to pursue the cartel in relation to the international transit of goods by road to and from Italy, but considered that DHL's summary application did not cover the road freight forwarding cartel, although it did provide evidence on the air and maritime freight forwarding cartel. DHL completed its leniency application in June 2008. However, in the meantime, Deutsche Bahn AG (and its subsidiary Schenker)had already submitted a summary leniency application covering, to a sufficient extent, the freight cartel by road.
The Italian NCA granted Deutsche Bahn AG full immunity from fines, whereas DHL was only granted a 50% reduction. DHL brought an action before the Administrative Tribunal of Latium and then, on appeal, before the Italian Council of State, arguing that a leniency application made to the Commission and a summary application made to an NCA must be considered as a whole. The Council of State referred several preliminary questions to the ECJ regarding the relationship between leniency applications made to the Commission and summary applications made to NCAs, as well as the legal status of the ECN Model Leniency Notice.
In his opinion, Advocate General Whatelet stated that the ECN is not a legislative body and thus cannot adopt acts that are binding on NCAs. Consequently, the ECN Model Leniency Programme does not have binding legal effect on NCAs.
Advocate General Whatelet then considered that there is no link between a leniency application made to the Commission and a summary leniency application made to an NCA for the same cartel. Consequently,the two applications remain independent of one another. This also means that an NCA is not obliged to assess a summary application in light of the main application made to the Commission or to contact either the Commission or the applicant to enquire whether, after the submission of the summary application, the Commission identified any instances of conduct covered by the main application, but not the summary application.In fact, such an obligation would run against the principles of autonomy and the independence of leniency programmes and could reduce the applicant's duty to cooperate.
It stems from the above that, if a summary leniency application to an NCA does not contain a sufficiently comprehensive description of the various aspects of the cartel already confessed to the Commission, the applicant may risk losing part or all of its leniency status at the national level.
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