by Martina Maier, Christoph Voelk and Philipp Werner

On 9 September 2011, the European General Court in Deltafina ruled that the European Commission is entitled to withdraw the immunity of a leniency applicant in a cartel investigation if the leniency applicant discloses the fact that it had submitted a leniency application to the Commission and the disclosure does not correspond with the "real spirit of cooperation" (in particular, was not agreed with the Commission). The leniency applicant cannot rely on the protection of legitimate expectations in such a case.  The General Court stated:

It should be also noted that the assessment of the facts, whether such a company behaved in manner that expressed the spirit of genuine cooperation in compliance with the requirements (…), can be done only with regard to the circumstances existing at the time when this conduct was performed.   With regard to the “permanent” character of the required cooperation, which has to be continuously maintained throughout the whole procedure, any conduct contrary to the spirit of genuine cooperation in itself is sufficient to establish the breach of the duty of genuine cooperation.  Therefore, any circumstance that occurred after the conduct in question cannot justify this breach (Judgment not yet available in English – convenience translation).

This judgment confirms that a company that wants to apply for leniency must know that it has to cooperate with the European Commission and that the cooperation obligation can be very far-reaching. Failure to cooperate will lead to a withdrawal of leniency. The company has to take this into account when making its decision, a decision that is increasingly complex and must balance many different, often conflicting, interests and obligations.

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