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The unsuccessful will be many including in the ranks of the French banksTrays of cheeses three in number are sumptuousBut the industrial world is without mercyAfter inflation the expected real return is 1Energy and environmental issues are closely linkedThey crave for the history of strong growthIn these conditions we will see how goes the suiteThe false trade cooperation has developedThis derogation will last only until 2016The green economy professionals hold their breathThe Commission has built a "leniency program" in the majority of the Member States of the European Union, allowing companies that took part in a cartel immunity or reduction of fines in denouncing the other members of the cartel. These systems are a formidable efficiency because, by encouraging denunciation, they give rise to mistrust between members of cartels.
An application for mercy to a competition authority is however worth before it, no authority is here bound by the decision of another. When a cartel affects several Member States, businesses are therefore frequently brought to apply for clemency to the Commission and several national authorities. However, in most programs, the benefit of immunity from fines is granted only to the first applicant. Thus, not only companies must file an application before several authorities with each of the different requirements for mercy, but they must be the first to do so, ahead of their competitors. This raises a large number of difficulties and, in a reference by the Commission of a case to a national authority, this may lead in some cases the loss of the benefit of any clemency. To resolve this type of difficulty the European competition network (REC) was adopted on September 29, 2006, a "model program clemency" whose aim is to achieve, ultimately to a harmonized system in which a leniency application will receive the same treatment on the part of any authority as part of the ECR To this end, and although this model program has in itself no binding, competition authorities are committed to make every effort to align their programs on this model.
The fines incurred
The model of the spandrel REC program significantly steps that the companies must perform in parallel clemency requests, including by introducing a uniform application model and providing for the possibility to make only one application full to the Commission, and much more succinct to the national authorities concerned applications. In addition, it clearly states the information and evidence that companies must provide for clemency and establishes a system of "marker" (order number), to protect for a period of time the rank of arrival of the applicant, innovations of American inspiration, core from a practical point of view. The CCC program also aims to define more clearly, but also to expand the scope of the duty of cooperation, for example stating that when a company plans to address a leniency application to an authority, it must not, in advance, had destroyed evidence relevant to this application.
To the extent where he clarifies the conditions for clemency and provides for the possibility in certain cases of summary applications for clemency, the CCC model program is undoubtedly a positive step forward for businesses and takes an additional step towards the establishment of a European single. It is hoped that the competition authorities will align to the faster their programs on this model (1), as the Commission, which published the same day a draft amendment to its communication of 2002 clemency (2).
The draft communication from the Commission contains amendments taking into account not only the program of the REC, but also the results of the consultation launched in February 2006 on the protection of the statements of the companies against the risk of "discovery" in the United States. It decides in particular the controversial issue of access to the statements of business by parties other than the recipients of a statement of objections, such as the complainants, in providing that these parties will not have access to these statements.
The modification of the Communication of 2002 clemency comes at point appointed, one month after the publication of the new guidelines on the calculation of the fines (3). It should be in effect, to preserve the effectiveness of the programs of mercy, to maintain a certain balance between the amount always greater of fines incurred for participation in a cartel and opportunities to escape the fines, these opportunities are better defined by the European Union.