On 3 June 2021, the European Court of Justice (“ECJ”) in case C-563/19 P Recylex v Commission dismissed Recylex’ appeal both to adjust its ranking in the leniency process and to receive partial immunity for parts of its participation in the Car Battery Recycling cartel. The judgment, on appeal against the judgment of the General Court (“GC”) of 23 May 2019, provides guidance to companies considering a leniency application when there is already an ongoing European Commission (“Commission”) investigation.
Applying for leniency enables cartel participants to obtain reduced or annulled fines. The 2006 Commission Notice on Immunity from fines and reduction of fines in cartel cases (“Leniency Notice”) sets out the key principles:
- the first company providing the Commission with sufficient evidence for an investigation will be granted full immunity;
- subsequent applicants can receive fine reductions of 30-50%, 20-30% or 20% depending on the timing of their submission; and
- companies can receive partial immunity for providing the Commission with details expanding the scope of the infringement.
In 2017, the Commission fined four companies for their participation in the Car Battery Recycling cartel. Each of the companies applied for leniency, with Recylex having submitted its application within a month after the Commission dawn raid. As the third leniency applicant, Recylex’ fine was reduced by 30%.
On appeal to the GC, Recylex submitted the following grounds of appeal:
- It had provided information regarding additional aspects of the cartel which gave the Commission a more thorough understanding of the timeline of the cartel. The GC had rejected the appeal on this point since the Commission was already aware of the meeting regarding which Recylex had submitted information, and the details had merely strengthened the Commission’s case.
- Recylex argued that the first leniency applicant Eco-Bat had not cooperated adequately with the Commission investigation, and should have been removed from the leniency ranking. According to Recylex, it should therefore take Eco-Bat’s position in the ranking and qualify for a higher 30-50% reduction in fine.
Regarding the scope of the infringement and partial immunity, the ECJ notes that the Leniency Notice aims to dismantle cartels quickly and efficiently; it seeks to encourage companies to cooperate with the Commission. Partial immunity exists to motivate infringing parties to quickly share incriminating evidence with the reassurance that such disclosure will not result in a larger fine. Granting merely a fine reduction would incentivise companies to weigh whether such reduction would compensate for the higher basic amount that would result from the increased gravity of the infringement.
Any additional information expanding the infringement’s duration, geographic or material scope qualifies an applicant for partial immunity. The ECJ finds that Recylex had merely provided information that strengthened a pre-existing body of evidence, rather than expanded the scope of the infringement. It would not have been appropriate therefore to grant partial immunity, because the information provided did not increase the gravity of the infringement and no compensation for an increased basic amount of the fine was necessary.
Regarding the ranking of leniency applicants, and in line with previous case-law, the ECJ held that Eco-Bat not meeting its cooperation requirements would not qualify Recylex for a higher position in the leniency ranking. Such an approach is neither supported by the wording of the Leniency Notice nor would it be consistent with the objective of the Leniency Notice which is to create a ‘climate of uncertainty within cartels’.
The ECJ confirms that, barring exceptional circumstances, full immunity is not available to companies who are already under investigation by the Commission. Their leniency application may however result in a substantial reduction of the fine, with the percentage of the reduction being determined by the ranking and the timing of their application.
The judgment confirms that in order to obtain partial immunity the leniency application will have to provide the Commission with evidence that clearly and significantly expands the scope of the infringement. Providing evidence strengthening information that the Commission already has will only allow for a higher percentage of fine reduction, but not for partial immunity.
Further, the judgment confirms that the leniency ranking is set and there is little scope for companies to strategically withhold leniency applications on account of potential subsequent changes in the ranking. Any failure to comply with cooperation requirements by a leniency applicant would not qualify the subsequent applicant to take a higher position in the ranking.