This presentation by the European Union was made during a roundtable discussion at the 120th meeting of the Working Party 3 of the OECD Competition Committee on 16 December 2014. Find out more at http://www.oecd.org/daf/competition/markers-in-leniency-programmes.htm

1. Use of markers in the European
Commission leniency programme
Sari Suurnäkki and Angela Nardella
DG COMP, Cartels
OECD WP3 roundtable on use of markers in
leniency programs
16 December 2014

2. The marker system under the European
Commission 2006 Leniency Notice
• Purpose: preserve and protect the applicant's place in a
leniency queue for a definite period of time to allow for
time to complete an immunity application
• Characteristics: discretionary system reserved only for the
first immunity applicant

3. Conditions for a marker application (i)
The applicant is required to provide the following information –
as far as known to it:
 in addition to disclosing its own participation, identify other
parties to the alleged cartel
 describe the affected products and territories (particularly
within the EU)
 describe the nature and estimated duration of the cartel
The applicant is also asked to provide
 information on other past/future leniency applications to
other authorities (relating to the same conduct)
 a justification for the marker request

4. Conditions for a marker application (ii)
This information is the minimum standard which allows the
European Commission to swiftly:
• ascertain that the application concerns a secret cartel
affecting the EU,
• verify whether immunity is still available for such
conduct,
• verify whether the Commission or national authorities
should deal with the application, and
• contact other authorities.

5. Oral procedure for applications
A marker application can be submitted:
• in writing or
• as an oral statement
The oral procedure provides a particular protection
from discovery to the information submitted orally by
immunity or leniency applicants.

6. Protection of leniency statements under the new
Directive on antitrust damages actions
• Leniency statements can never be disclosed in actions for
damages before national court (Art. 6(6));
• Member States are obliged to ensure that such statements
(accessible only through access to the file procedure after SO)
will be deemed inadmissible in actions for damages before
national Courts (Art. 7);
• Member States are obliged to foresee sanctions for misuse of
information received in access to file (Art. 8);