Applying for Leniency is a Leap in the Dark: Protecting the Effectiveness of Leniency Programmes

Cristina Volpin Centre for Commercial Law Studies, Queen Mary University of London explores Applying for Leniency is a Leap in the Dark: Protecting the Effectiveness of Leniency Programmes.

ABSTRACT: After Pfleiderer, Donau Chemie and Kone the CJEU returned on the topic of the effectiveness of leniency programmes with a key judgment on multijurisdictional leniency applications. The preliminary reference ruling in DHL Express stated how, absent a European Union-wide harmonised system of leniency programmes, the relationship between the leniency application for immunity made to the Commission and a summary application made to an NCA for the same cartel is one of mutual autonomy. According to the CJEU, the purpose of leniency programmes might be impaired by the elimination of uncertainty regarding the exact amount of information that is required to trigger the granting of immunity or reductions of fines. By establishing that unpredictability is one of the intended features of EU leniency policy, the CJEU has once again prioritised the effectiveness of the Commission’s investigation over the rights of defence of the undertakings, also at the preliminary stage of the gathering of evidence by means of leniency programmes. This article is aimed at describing how the judgment gave a prominent role to the principle of effectiveness, also in regard to leniency programmes. While it is not a novelty that the principle of effectiveness is given a decisive role in preliminary rulings dealing with leniency programmes, in the DHL Express case, for the first time, the principle of effectiveness proved decisive in a situation where the rights of individuals in the private enforcement were not at stake.