Office of Fair Trading
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OFT publishes new leniency guidance
The OFT has yesterday published revised and detailed leniency guidance (pdf 1.2Mb) aimed at providing a clear and practical framework for leniency applications, including a policy of not requiring legal professional privilege waivers as a condition of leniency.
The new guidance is accompanied by two 'Quick Guides', one aimed at businesses (pdf 255kb) and one aimed at individuals (pdf 208kb). Under the OFT leniency programme, businesses that come forward and report their involvement in cartel activity may avoid a financial penalty or have the penalty reduced substantially. Individuals involved in cartel activity may also be granted immunity from criminal prosecution for the cartel offence under the Enterprise Act 2002.
The revised guidance replaces the OFT's previous leniency handling guidance, OFT803, 'Leniency and no-action' and will apply from today to all leniency applications made to the OFT.
Jackie Holland, who led this work for the OFT, said:
'The secret nature of cartels and their damaging effects justifies a policy which rewards businesses or individuals who come forward to tell us about cartel activity that would otherwise have remained hidden.
'It also helps us bring successful enforcement action against the other cartel members or individuals involved to bring the harmful activity to an end, as well as deterring businesses and individuals more widely from engaging in cartel activity in the future.
'The granting of lenient treatment to businesses or individuals who inform competition authorities of cartels and then cooperate fully in an investigation is therefore in the interests of the UK economy.'
The new guidance also includes quick-reference charts and tables for ease of use and understanding.
On 26 October 2011 the OFT published for consultation a revised draft leniency guidance (OFT803con). In the revised draft leniency guidance, the OFT clarified its existing policy that legal professional privilege (LPP) waivers would not be required in civil investigations under the Competition Act 1998 but that where the OFT was carrying out a criminal cartel investigation under the Enterprise Act 2002, the OFT could not exclude the possibility of requiring LPP waivers in relation to the criminal case. Having considered carefully the responses to the consultation on the LPP waivers issue, and how to ensure the OFT's ability to bring effective prosecutions whilst preserving leniency incentives and respecting the rights of interested parties, the OFT conducted a Supplementary Consultation (OFT 803 Suppcon) on 10 October 2012. The purpose of the Supplementary Consultation was to seek views on a further policy option of not requiring LPP waivers as a condition of leniency in any circumstances and the use in some situations by the OFT of Independent Counsel to advise the OFT on the merits of a claim to LPP made by a leniency applicant. The Supplementary Consultation closed on 14 November 2012.
The OFT is prepared to offer lenient treatment to businesses and individuals that come forward and report their involvement in cartel activity. Under its leniency programme, businesses that have participated in a cartel may have their financial penalty reduced substantially or they may be able to avoid a penalty altogether. Individuals involved in cartel activity may also be granted immunity from criminal prosecution for the cartel offence. To qualify for leniency, applicants must admit their involvement in unlawful cartel activity, cooperate fully with the OFT investigation and stop their involvement in the cartel from the time they come forward.
The OFT's clarification that it will not require LPP waivers as a condition of leniency follows very careful consideration of comments in response to both the original and supplementary consultations as well as engagement with prosecutors in the UK. The OFT considers that this approach to LPP waivers is consistent with those of other UK prosecutors in relation to similar issues, such as the Crown Prosecution Service and Serious Fraud Office in relation to Deferred Prosecution Agreements as well as agreements under the Serious Organised Crime and Police Act 2005.
The revised leniency guidance will be put to the Competition and Markets Authority Board (once established) for adoption.