The obligation to secure your opponent's data in the age of hacking
Hacking, corporate espionage and data breaches are on the rise around the globe.
On January 20, 2016, the European Court of Justice (the Court) issued a seminal preliminary ruling on the relationship between EU and Member State leniency programmes in Case C 428/14, DHL Express (Italy) Srl and DHL Global Forwarding (Italy) SpA v. Autorità Garante della Concorrenza e del Mercato. The Court held that EU and Member State leniency programmes are fully independent, so that obtaining leniency or immunity in an EU cartel investigation does not entitle the leniency/immunity beneficiary to similar treatment in related national investigations.
The DHL judgment underscores the need for applicants to exercise great care in preparing leniency applications to the EU Commission and national authorities and the risks created by even apparently minor inconsistencies. The judgment is also likely to create momentum for an EU legislative initiative to improve the efficiency of the EU leniency regime, currently the subject of a consultation by the EU Commission’s DG COMPETITION.
The DHL case originated in a request by the Italian Supreme Court for a preliminary ruling in proceedings between DHL Express (Italy) Srl and DHL Global Forwarding (Italy) SpA (DHL), and the Autorità Garante della Concorrenza e del Mercato (the AGCM), concerning the AGCM’s decision to impose fines on DHL for participating in a cartel in the sector of international road freight forwarding to and from Italy.
The case arose from a race among several cartel particpants seeking leniency from the European Commission and the AGCM in connection with a cartel in the international freight forwarding sector and apparently minor discrepancies between the scope of those participants’ applications. DHL was the first to submit an application for leniency with the European Commission, on 5 June 2007. On 24 September 2007, the Commission granted DHL conditional immunity for the entire international forwarding sector, that is to say, as regards maritime, air and road transit. On 20 December 2007, DHL brought to the attention of the Commission certain information concerning the conduct of undertakings in the international road freight forwarding sector in Italy, but the Commission decided to pursue only the part of the cartel concerning international air freight forwarding services, leaving the AGCM free to pursue infringements in relation to sea and road freight forwarding services.
In parallel, on 12 July 2007, DHL submitted to the AGCM a summary application for immunity under the national leniency programme providing information concerning unlawful conduct in the international freight forwarding and transport market. That application did not specifically cover the road transport sector. On 23 June 2008, DHL submitted an additional summary application for immunity to the AGCM, supplementing the 12 July 2007application to expressly extend that application to the international road freight forwarding sector.
Meanwhile, however, Deutsche Bahn AG submitted to the Commission on its own behalf and on behalf of Schenker Italiana SpA (Schenker) a first leniency application on 5 November 2007concerning sea freight forwarding and, a second application concerning road freight forwarding on 19 November 2007. In addition, on 12 December 2007, Schenker submitted a summary application for leniency to the AGCM, providing information on road freight forwarding in Italy.
On 15 June 2011, the AGCM adopted a decision finding that several undertakings, including DHL and Schenker, had taken part in a cartel in the international road freight forwarding sector. The AGCM recognised Schenker as the first company to have applied for immunity in Italy for road freight forwarding. The AGCM considered that, in its application of 12 July 2007, DHL had requested immunity from fines only for air freight and sea freight forwarding, the application in respect of road freight forwarding having been filed only on 23 June 2008.
DHL brought an action for partial annulment of the decision before the Tribunale amministrativo regionale per il Lazio (the TAR) on the ground that it should have been accorded the first place in the queue for the national leniency programme and therefore immunity from fines. According to DHL, the principles of EU law require a national authority which receives a summary leniency application to assess it taking into account the “main” application for immunity submitted to the Commission. The TAR rejected DHL’s appeal on the basis that the different leniency programmes and the applications in relation to those programmes were autonomous and independent.
DHL appealed the judgment at first instance to the Italian Consiglio di Stato (Council of State), which decided to stay the proceedings and referred the following questions (as paraphrased by the Court):
The Court had no difficulty in rejecting DHL’s arguments on all three questions referred to it by the Council of State.
In relation to the first question, the court held that the ECN, being intended to encourage discussion and cooperation in the implementation of competition policy, does not have the power to adopt legally binding rules. Thus, in the absence of a centralised system at the EU level for the receipt and assessment of leniency applications in relation to infringements of Article 101 TFEU, the treatment of such applications sent to a national competition authority is determined by that authority under its national law. In any event, the Commission’s Leniency Notice relates only to leniency programmes implemented by the Commission itself, and the ECN Model Leniency Programme has no binding effect on the courts and tribunals of the Member States.
In relation to the second question, the Court noted again that, absent a European Union-wide system of fully harmonised leniency programmes, an application for leniency to a given authority is not to be considered as an application for leniency to any other authority, and the treatment of a leniency application is determined by the law of each Member State. National competition authorities are free to adopt leniency programmes, and each of those programmes is autonomous, not only in respect of other national programmes, but also in respect of the EU leniency programme.
That autonomy cannot, moreover, be affected by the fact that the various applications concern the same infringement of competition law. The autonomy of leniency programmes extends to the various applications for immunity submitted to the Commission and to the national competition authorities. The system is based on the principle that there is not, at the EU level, a single leniency application or a “main” application submitted in parallel to “secondary” applications, but rather applications for immunity submitted to the Commission and summary applications submitted to the national competition authorities, the assessment of which is the exclusive responsibility of the authority to which the application in question is addressed.
In any event, no provision of EU law in relation to cartels requires national authorities to interpret a summary application in the light of an application for immunity submitted to the Commission, irrespective of whether or not that summary application accurately reflects the content of the application submitted to the Commission.
As regards any obligation for the national competition authority to contact the Commission or an applicant, where the material scope of that summary application is more limited than that of the application for immunity, the Court noted that such an obligation could attenuate the duty of cooperation of leniency applicants, which is one of the pillars of any leniency programme.
It is therefore in the interest of an undertaking wishing to benefit from the leniency system to submit applications for immunity, not only to the Commission, but also to potentially competent national authorities. The applicant must ensure that any application which it submits is devoid of ambiguities as to its scope, especially as there is no obligation on the national competition authorities to assess a summary application in the light of an application for immunity submitted to the Commission.
As regards the third question, the Court noted that the ECN Model Leniency Programme indicated that the system of summary applications for immunity at the national level was open to the undertaking that had applied to the Commission for immunity from fines, whereas it was not clear whether that system was also open to undertakings that had applied to the Commission for a mere reduction of fines. This possibility was only expressly provided for after amendments made to that programme in 2012.
Nonetheless, the Court held that the fact that the ECN Model Leniency Programme, in the then-existing version, did not expressly refer to the possibility for the undertakings that had submitted an application for reduction of fines to lodge a summary application for immunity before the national competition authorities did not preclude authorities from accepting such an application. As the Court found in response to the first question, instruments adopted in the context of the ECN are not binding on national competition authorities.
As a result, Member States are not required to incorporate provisions of the ECN Model Leniency Programme in their leniency systems and, they are not precluded from adopting rules not present in that model programme or which diverge from it, in so far as that competence is exercised in compliance with EU law. In particular, Member States may not render the implementation of EU law impossible or excessively difficult and must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU. In that respect, the effective application of Article 101 TFEU does not preclude a national leniency system which allows the acceptance of a summary leniency application submitted by an undertaking which had not submitted an application for full immunity. On the contrary, that approach is in accordance with the underlying purpose and spirit of the establishment of the system of leniency applications, which should encourage the submission of such applications, not limit their number.
Under the system of parallel enforcement of EU competition law created by Regulation 1/2003, the operation of numerous leniency programmes at the EU and national levels creates challenges for undertakings applying for leniency or reductions from fines. Potential applicants must take great care to ensure that they file applications in all relevant jurisdictions and that these applications are consistent as regards the scope of conduct covered. The DHL judgment confirms that, in the event of inconsistencies, an applicant cannot rely on a broader scope in its EU application to protect it from fines by national authorities. The pitfalls created by the current system of parallel competences, and the absence of a centralized EU leniency programme, has long been recognized. These issues are currently being examined by DG COMPETITION, and it seems likely that the Commission will propose reforms to address these issues in the near to medium term.
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