The document discusses the Austrian Leniency Programme, which allows immunity from fines or reduction of fines for companies that report cartel activity. It notes that 116 applications have been made since 2006. It also discusses transparency measures like publishing a handbook after consulting with legal experts. The handbook provides guidance to potential applicants on eligibility and procedures. The document also discusses how the leniency programme interacts with criminal immunity and private damages actions to promote reporting of cartels while balancing other legal interests. It concludes that Austria's transparent and flexible approach has contributed to a positive track record with its leniency programme.

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Strengthening incentives for leniency agreements
Experience of the Federal Competition Authority
Dr. Natalie Harsdorf-Borsch
Acting Director General
LatinAmerican and Caribbean Competition
Forum
27 September 2022

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The Austrian Leniency Programme - Basics
• Established by the 2005 amendment of the CompetitionAct; entry into force 2006
• Lays down conditions under which immunity from fines or a reduction of fines has
to be granted.
• Wide scope
− Full range of prohibitions laid down in Sect. 1 of the Cartel Act and Article 1
TFEU.
− No restriction to horizontal agreements or secret Cartels.
• Adjustments due to transposition of Directive 2019/1/EU (ECN+)
• Interplay with leniency notice in criminal procedural law
• 116 leniency appliations since 2006.
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Transparency – Handbook on the Leniency Programme
• Handbook has always been integral part of the Leniency Programme
• The practice applied by the BWB in the implementation of the Leniency
Programme had to be laid down in this handbook (legal obligation).
• Transposition of ECN+ Directive:
− Many provisions of Leniency Handbook were transferred to an Ordinance of the
Minister of Economy.
− FCA has to publish an information reduction of fines (procedure, range of
reduction according to the rank of the applicant).
• Handbook had been well established  FCA decides to continue to publish
comprehensive guidance.
• Consultation of lawyers, Cartel Court, interest groups, Ministries  FCA received
comments from nine institutions.
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Transparency – Handbook on the Leniency Programme
Consultation of lawyers, Cartel Court, interest groups, Ministries
• The FCA received comments from nine institutions:
− Federal Ministry of Justice
− Federal Ministry of Economic and DigitalAffairs
− Cartel Court
− Public Prosecutor’s Office against Corruption
− Federal Bureau of Anti-Corruption
− Austrian Economic Chambers
− Chamber of Labour
− Austrian Bar Association
− Studienvereinigung Kartellrecht 4

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Transparency – Handbook on the Leniency Programme
Objectives of Guidance on Leniency
• Initial guidance for potential leniency applicants on substantive requirements to
obtain leniency and on procedural aspects.
• Presentation of a complex subject in an understandable way.
• Information for professional legal practitioners on issues arisen in the context of
the transposition of the ECN+ Directive.
• Overview of related aspects: interplay with criminal law, damages actions,
handling of leniency statements, settlement procedures
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Transparency – Handbook on the Leniency Programme
Content of the Guidance
• Scope of the leniency programme
• General conditions for leniency
• Conditions for immunity from fines / reduction of fines
• Procedural aspects
• Immunity from criminal prosecution
• Privileged status in antitrust damages actions
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Immunity from criminal prosecution
• Criminal Code stipulates criminal sanctions of natural persons for bid rigging.
• Criminal sanctions might deter undertakings from leniency applications.
• Section 209b of the Code of Criminal Procedure: Possibility of a criminal
immunity” for employees of a company that has made a substantial contribution
to the clarification of an antitrust infringement towards the FCA, the European
Commission, or the competition authority of another EU member state.
• The original version of section 209b entered into force in 2011 and was a model for
the respective provision of the ECN+ Directive.
• Section 209b is applicable to cases in which the same fact constitutes an
infringement of antitrust law (Sect. 1 Cartel Act, Art. 101TFEU) and a criminal
offence.
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Impact of Damages Actions on Leniency Programmes
• Private enforcement may be detrimental to leniency programmes.
• Transposition of Damages Directive (2014/104/EU) by 2017 reform of the Cartel
Act.
• Differences between leniency concept of law on damages and national leniency
programme
− The Austrian Leniency Programme covers horizontal and secret cartels as well.
• Privileges of leniency applicants regarding liability
− Liability (secret and horizontal cartel, full immunity granted) to direct or indirect
customers or suppliers only, unless other injured parties are unable to obtain full
reimbursement from other liable parties.
− The reimbursement claim of an infringer against such a leniency applicant for the
damage incurred by direct or indirect purchasers or suppliers of the infringer is limited to
the amount of damage caused by the leniency applicant to his own direct or indirect
customers or suppliers. 8

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Impact of Damages Actions on Leniency Programmes
• Privileges of leniency applicants regarding disclosure
− No disclosure of applications for full immunity or reduction of a fine in cases of
horizontal cartels.
− Exception: Information which is available irrespective of a competition
procedure, even if such information is contained in the files of the competition
authority.
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Best Practices
Legal community has a positive track record with leniency
• Transparent and unbureaucratic approach of the FCA
− Guidance Paper
− Feedback of lawyers, courts, interest groups is taken into account
− FCA is easily available for exchange with potential applicants
• Wide scope of the leniency programme
• Immunity from criminal prosecution for employees
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Promoting Leniency in Austria
• Transparency:The handbook is published on the Authority's website
(www.bwb.gv.at) and revised frequently.
• Feedback of lawyers is collected (consultation).
• FCA is accessible for requests and applications at short notice.
• The interaction between leniency programme and leniency notice in criminal
procedures works well.
• Advocacy activities
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Thank you for your attention!
Natalie Harsdorf-Borsch
Federal CompetitionAuthority
natalie.harsdorf@bwb.gv.at