The Slovak Leniency Programme has recently borne its first fruit since its introduction in the Slovak Competition Act (the “Act”). The Council of the Antimonopoly Office of the Slovak Republic, which is the second-instance competition authority in Slovakia, rendered upon appeal its first final decision (which can, nevertheless, still be challenged before a court) in the gas insulated switchgears (GIS) cartel case. This case was initiated on the basis of the first leniency application in Slovakia. Slovak competition law closely follows modern trends especially in EC competition law; however, other decisions or even other commenced proceedings initiated on the basis of a leniency application are still lacking.
An undertaking submitting the leniency application will be granted full immunity from the fines for participation in a cartel if it is the first to submit evidence proving the infringement of the prohibition of horizontal agreements restricting competition. A recent amendment of the Act extended full immunity to the undertakings which are the first to submit decisive evidence or information for carrying out targeted inspection in the objects, premises or vehicles of another undertaking. Full immunity from fines in both aforementioned cases is conditioned (i) on the termination of the participation in the cartel before submitting the evidence; (ii) on the absence of coercion of another undertaking to cartel participation on the part of the leniency applicant; and (iii) on the submission of all available evidence and co-operation in the course of the entire investigation.
Further, a reduction of the fine up to 50% will be granted to an undertaking that submits significant evidence which in connection with the information and documents available to the Antimonopoly Office of the Slovak Republic (the “AMO”) will enable it to prove infringement of the prohibition of horizontal agreements restricting competition. In addition, the applicant for the reduction of fine must have terminated its participation in the cartel before submitting the abovementioned evidence.
The AMO in its Leniency Programme adopted in 2006 provides for detailed procedural rules for the AMO to proceed in case of a leniency application. It largely draws inspiration from the Commission Leniency Notice. For example, it is possible for an undertaking to apply for a marker protecting the applicant’s place in the queue if it needs time for gathering information or evidence. An applicant for immunity can also apply for leniency in hypothetical terms where neither the name of the applicant nor the names of other cartel members would be disclosed.
The administrative proceedings commence when the AMO makes the first procedural step towards the participant which is usually a formal letter informing the parties of the commencement of the proceedings, followed in several weeks by “a call before issuing a decision” similar to the European Commission’s statement of objections. Filing of the leniency application itself does not trigger the commencement of the administrative proceedings and there is, consequently, no access to the information on the leniency application made prior to the formal commencement of the proceedings. The period between the lodging of the leniency application and formal commencement of the proceedings may take several years, which was the case in the GIS cartel proceedings. During this period the AMO makes its own investigation and gathers evidence proving the existence of a cartel arrangement. Only when the AMO believes it has a strong case, will it commence the formal proceedings.
The AMO must issue the decision in the proceedings related to cartel agreements within six months after the commencement of the proceedings, while the chairman of the AMO can prolong this period repeatedly for a maximum 24 months in total. The same maximum time limit applies also to the second instance proceedings where the Council of the AMO decides. The participant may then lodge the action to the court for review of the legality of the decision of the Council of the AMO. The court does not have time limits for its decision.
Nevertheless, there is an understanding among practitioners that the leniency application made in the case of the GIS cartel is not the only leniency application made so far with the AMO and it is only a matter of time before other proceedings could come about. Any closer information shedding light on the attractiveness of the AMO’s Leniency Programme for cartel members is not available for the moment. It is, for instance, not possible to conclude whether it is only the global corporations in cross-jurisdictional cartel cases taking advantage of the AMO’s Leniency Programme as was the case in the GIS cartel or whether there are also local Slovak companies applying for leniency. It can be concluded that in order to ascertain whether the Slovak Leniency Programme has been a success story, it is necessary to await future administrative proceedings initiated on the basis of the leniency application as well as Slovak courts’ decisions reviewing the practice of the AMO in applying the Leniency Programme.