Immunity, Sanctions & Settlements

Last verified on Tuesday 5th June 2018

Poland

Krzysztof Kanton
Sołtysiński Kawecki & Szlęzak

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?

  2. The Polish leniency programme allows undertakings to disclose participation in an anticompetitive arrangement to the Office of Competition and Consumer Protection (OCCP) in exchange for full or partial immunity from a fine. The programme is based on the following general premises: (i) the earlier an application for leniency is submitted, the greater the benefit; and (ii) the benefit should depend on the value of information provided by the applicant and its cooperation with the OCCP.

    The leniency programme entered into force in Poland over 10 years ago. Its introduction, which coincided with Poland’s accession to the European Union in 2004, was part of a process of legislative changes intended to harmonise Polish competition law with EU regulations.

    The rules of obtaining immunity and fine reductions under the leniency programme are included in the 2007 Act of Competition and Consumer Protection (the Act). Although the Polish regulatory framework in this field closely resembles the EU model, there are certain differences, for example, application of the Polish leniency programme to vertical agreements. The amendments to the leniency procedure, which entered into force in 2009, incorporated into the programme the elements of the ECN model leniency programme. In parallel with adoption of new procedural rules, the OCCP adopted its first ever Guidelines on Leniency (the Guidelines) to raise awareness of leniency and appraise potential candidates of their duties and rights under the programme.

    On 18 January 2015, substantial changes to the Act entered into force. They included, among other things, revised rules on the leniency programme.

  3. 2.

    Do the protections extend to current and former officers, directors and employees?

  4. Individuals who manage an undertaking bear financial liability if their intentional actions or omissions committed in connection with managerial duties result in participation in an anti-competitive agreement. However, individuals may seek protection under the leniency programme which provides for, among other things: 

    • the extension of protection and immunity for managers if an undertaking submits a successful application for immunity (no separate motion of a manager is then required);
    • the possibility of immunity or reduction of fine even if the immunity is not granted to an applying undertaking provided that the manager cooperates with the OCCP; and
    • the possibility for managers to submit motions for immunity on their own (without advising a company they manage of this fact).
  5. 3.

    Is immunity available after an investigation begins?

  6. Yes, immunity is available after the OCCP starts an official investigation. In principle, an application can be submitted even if the proceedings are fairly advanced but in practice the chances to obtain immunity are reduced in the event of such late submission (see question 5).

  7. 4.

    What are the eligibility requirements before an investigation begins?

  8. The OCCP will grant full immunity if an undertaking, as the first such applicant:

    • submits to the OCCP an application that fulfils the statutory criteria; and
    • provides the OCCP with evidence that enables the OCCP to start the formal administrative proceedings concerning an infringement.

    Further statutory conditions for immunity are as follows:

    • the applicant is obliged to cease participation in infringement immediately following submission of the motion;
    • the applicant did not induce the remaining parties to participate;
    • the applicant fully cooperates with the OCCP during proceedings; and
    • the applicant shall be precluded from disclosing to anyone that it submitted the motion for immunity.
  9. 5.

    What are the eligibility requirements after an investigation begins?

  10. The applicant must fulfil all the conditions that apply if a motion is submitted before an investigation begins. In addition, the applicant is required to provide evidence that substantially contributes to rendering a decision concerning an infringement or provide to the OCCP information enabling it to secure such evidence.

  11. 6.

    Will the applicant have to admit to a violation of law?

  12. An applicant is not required to provide a declaration concerning termination of activity in an ‘illegal arrangement’ or similar statements that might imply an admission to a violation of the law.

  13. 7.

    Are ringleaders or initiators of the conduct eligible?

  14. Immunity from fine is available to initiators of an anticompetitive arrangement. Entities found to coerce others to participate remain barred from immunity, but they are potentially eligible for reduction of fines.

  15. 8.

    When must the applicant terminate its involvement in the conduct?

  16.  An applicant, who has not terminated its anti-competitive conduct prior to submission of motion for immunity, shall do so ‘immediately’ following the submission.

  17. 9.

    What constitutes termination of the conduct?

  18. Termination of the conduct usually requires that the applicant stops attending cartel meetings and refrains from discussing and coordinating market conduct with other parties. As regards vertical agreements, the PCA will usually require termination or modification of an agreement (eg, removal of resale price mechanisms in a distribution contract).

  19. 10.

    Will the applicant be required to make restitution to victims?

  20. No, restitution to victims is not a requirement for obtaining immunity.

  21. 11.

    Can more than one applicant qualify for immunity?

  22. No, only the first company to submit a motion and meet further conditions can be granted immunity.

  23. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?

  24. No, to qualify for immunity an applicant must submit its own application to the OCCP and meet all the applicable requirements.

  25. 13.

    Does the afforded protection extend to any non-antitrust infringements?

  26. The leniency programme does not extend cover any non-antitrust infringements.

    It should also be noted that actions for damages can be pursued against leniency applicants in civil proceedings that might ensue as a result of the proceeding initiated by the OCCP. However, according to Polish regulations which implement the EU Damages Directive 2014/104/EU, an immunity recipient shall be held jointly and severally liable only where full compensation cannot be obtained from other participants of a cartel. 

  27. 14.

    What confidentiality assurances are given to the first applicant to report?

  28. No materials provided by the applicant can be disclosed to third parties unless the applicant agrees to such disclosure in writing. Furthermore, the remaining parties to the proceedings are granted access only shortly before the proceedings are completed. They cannot copy the documents submitted by the applicant without its prior consent.

  29. 15.

    Does the authority publish guidance regarding the application of the programme?

  30. Yes, the guidelines are available on the website of the OCCP (www.uokik.gov.pl).

  31. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?

  32. Generally, there is no conflict.

    Polish rules address situations where the European Commission is also investigating a cartel. If an illegal arrangement covers more than three EU member states, including Poland, the undertaking that submits a leniency application to the European Commission in accordance with the EU law may also simultaneously submit to the OCCP the summary application. The summary application needs to be completed only upon express request of the OCCP in the event that no action is taken by European Commission and the OCCP decides to pursue the case on its own.

    Immunity application and marker process

  33. 17.

    What is the initial process for making an application?

  34. Before the submission of the application, an undertaking is authorised to contact the OCCP by telephone to obtain information on the leniency programme, and present on a no-names basis ‘hypothetical’ circumstances of the case for a preliminary assessment of eligibility for the leniency programme.

    Submission of the application can be made directly with OCCP by facsimile, e-mail or registered letter (however, sending the application by post is not preferred by the OCCP). The applicant is required to deliver to the OCCP the original application (or a certified copy thereof) within three days from the date of sending the application electronically or by fax (if the foregoing deadline is met, the application is presumed to have been made on the date the OCCP received a fax or email copy of the application).

    The motion for immunity from fine can be also submitted by means of an oral application before a representative of the OCCP. The content of the oral application is included in the protocol, which should be signed by the applying party.

    The date and the hour on the minute regarding the submission (recorded by the OCCP) is a decisive factor determining the applicant’s place in the queue.

  35. 18.

    What information is required to secure a marker?

  36. The short form application (a marker) can be submitted if the applicant is not in possession of information and evidence required to submit a full motion for immunity and can produce only preliminary information or evidence. Such short-form application must, nonetheless, include:

    • a formal motion for immunity from fines and a description of the arrangement indicating among other things:
      • the undertakings participating in an illegal arrangement;
      • the products or services concerned;
      • the affected territory;
      • the goals of the arrangement;
      • the duration of infringement; and
      • names and official positions of persons who had an important role in the arrangement, together with its description.
  37. 19.

    How much time will an applicant have to perfect its marker?

  38. The short-form application protects the place of an applicant in the queue for a given period defined by the OCCP. Upon receipt of the short-form application, the OCCP is required to confirm to the applicant the date and hour of the submission and should, without undue delay, inform the applicant what additional evidence should be submitted within the designated deadline. If the applicant observes the deadline, the information and evidence provided will be deemed to have been submitted on the date when the short-form application was submitted. Otherwise, the short-form application is rejected and the applicant loses its place in the queue.

  39. 20.

    Can the deadline for perfecting the marker be extended?

  40. The deadline for perfecting the marker can be extended in justified cases upon a motion of an applicant. The OCCP is not bound by the motion and can refuse extension of the deadline.

  41. 21.

    What is required to perfect the marker?

  42. There are no specific provisions of law which regulate precisely the scope of the required additional information and evidence. The OCCP determines individually in each case the scope of information and evidence required to perfect the marker.

  43. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?

  44. No, additional information should be promptly provided to the OCCP to comply with the duty to cooperate.

  45. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?

  46. No, an applicant cannot lose the marker merely due to the fact that a second applicant provided better application. The marker can be lost only if the applicant does not perfect it within a specified deadline or the information provided prove insufficient for the OCCP.

  47. 24.

    What if the applicant’s investigation reveals that no violation exists?

  48. The process of verifying whether or not there is a violation vests entirely with the PCA. The applicant may inform the PCA of its assessment but the authority is not bound by such opinion.

  49. 25.

    What if the authority decides not to investigate?

  50. The PCA shall advise the applicant that the matter does not merit an investigation.

    Immunity cooperation obligations

  51. 26.

    What is the applicant required to produce?

  52. An applicant should cooperate fully with the OCCP and provide the authority with all information and evidence relating to the infringement as soon as they are at its disposal, on its own initiative or upon a request of the OCCP. Furthermore, the applicant cannot destroy or conceal any evidence in its possession.

    The policies of the OCCP regarding the duty to cooperate are fairly strict and require active involvement in the proceedings by a party that seeks immunity or a reduced fine, in particular timely and voluntary delivery of all documents that could be relevant to the case. In Decision No. 1/08 dated 7 April 2008 Castroma/ICI, the OCCP refused to reduce a fine for the applicant for, among other things, the applicant’s lack of cooperation during the proceedings. In the decision the OCCP highlighted that the basic requirement for accepting the leniency application is ‘active, diligent and thorough’ cooperation in the proceedings.

  53. 27.

    Will the applicant be required to make a written confession?

  54. There is no express requirement for an applicant to make a written confession. The PCA generally recognises written testimonies of senior managers as evidence for purposes of the investigation but it does not condition immunity upon the undertaking producing such confession.

  55. 28.

    Can third parties obtain access to the materials provided by the applicant?

  56. No, disclosure of any materials submitted by an applicant to third parties is expressly prohibited under law. This also applies to parties seeking disclosure in relation to follow-on claims.

  57. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?

  58. Refusal to cooperate by one or more employees may potentially jeopardise the immunity if the OCCP decides that such conduct effectively breaches the applicant’s duty to cooperate.

  59. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?

  60. Obstructive behaviour carries a risk of losing protection if the OCCP concludes that it amounted to breach of the duty to cooperate.

  61. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?

  62. No, the PCA does not require disclosure of privileged materials from the applicants.

    Granting immunity

  63. 32.

    How does the authority announce its promise not to charge or sanction?

  64. If the OCCP preliminarily determines that the applicant may fulfil conditions for immunity, it should immediately confirm it to the applicant in writing. In practice, the initial evaluation of an application by the OCCP takes between two and three months from the date of submission of the application. Fulfilment of conditions for application of leniency is further evaluated during the antimonopoly proceedings (in particular, the OCCP verifies to the extent to which the applicant has fulfilled its duty to cooperate).

  65. 33.

    Does the authority put its commitment in writing?

  66. During antimonopoly proceedings, the OCCP only confirms in writing that the applicant may qualify for immunity. The ultimate confirmation is reflected in the final decision that ends the proceedings.

  67. 34.

    Who is given access to the document?

  68. The applicant is the only addressee of the letter confirming that it may qualify for immunity.

  69. 35.

    Does the authority publish a model letter for conferring immunity?

  70. Yes, the OCCP publishes a model letter for conferring immunity on its website.

    Individual immunity or leniency

  71. 36.

    Is there an individual immunity programme?

  72. In a situation where a company does not elect to seek protection under the leniency programme, current and former managers of business undertakings are able to submit a motion for immunity on their own behalf and separately from the company. One of the criteria for granting immunity to an individual is non-disclosure of submission of the application to any third party, including the current or former employer. The concept of individual application, made without the knowledge of an undertaking, raises a number of doubts and it is uncertain how it will be applied in practice.

  73. 37.

    What is the process for applying?

  74. The rules for applying are the same as those applicable to undertakings.

  75. 38.

    What are the criteria for qualifying?

  76. In principle, the criteria for qualifying are the same as those applicable to undertakings. However, a manager applying for immunity is required to provide information and evidence regarding the infringement only to the extent his or her management duties allow possession of such information and evidence.

    Revocation of immunity

  77. 39.

    On what basis can corporate immunity be revoked?

  78. During antimonopoly proceedings the OCCP verifies whether the applicant fulfils all the requisite criteria for immunity. The final determination in this respect is reflected in the final decision of the OCCP that pertains to an infringement.

  79. 40.

    When can it be revoked?

  80. The OCCP may revoke the status of an entity who may be eligible for immunity throughout the proceedings.

  81. 41.

    What notice is required to revoke?

  82. If the OCCP does not accept the application for immunity, it is required to return it to the applicant. It is important to note the OCCP does not return the accompanying documents to the applicant. Instead, the foregoing materials remain with the OCCP (there is no provision which would prohibit the OCCP from incorporating them into the case files of the antimonopoly investigation commenced against the infringement).

  83. 42.

    Can the applicant file a judicial challenge to a decision to revoke?

  84. No, this decision is not subject to any appeal.

    Reduction in sanctions

  85. 43.

    Does the leniency programme allow for reductions in sanctions?

  86. Yes, if an undertaking does not meet all the conditions for immunity, in particular if it is not the first entity to submit a motion for immunity, it can be still eligible for a reduction of a fine. The conditions for reduction of fine are as follows:

    • submission of an application to the OCCP;
    • delivery to the OCCP of evidence that substantially contributes to rendering a decision concerning a cartel; and
    • termination of involvement in the suspected infringement.

    Further conditions for reduction of fine are as follows:

    • the applicant is obliged to cease participation in infringement immediately following submission of the motion;
    • the applicant fully cooperates with the OCCP during proceedings; and
    • the applicant shall be precluded from disclosing to anyone that it submitted the motion for immunity.
  87. 44.

    What is the process for seeking a reduction in sanctions?

  88. The process for seeking a reduction in fine is the same as that governing applications for immunity (see question 17).

  89. 45.

    Is there a marker process similar to immunity applications?

  90. Yes, the marker process applies to applications for a reduction of fine.

  91. 46.

    Are the reductions in sanctions fixed or discretionary?

  92. The OCCP has discretion in setting the reductions but must observe the prescribed statutory limits.

  93. 47.

    How are the reductions in sanctions calculated?

  94. The scope of reduction depends on the rank of the application:

    • for an undertaking that is the first in line to qualify for a reduction, the OCCP can reduce the fine by up to 30 to 50 per cent;
    • for a ‘second-in’ undertaking, a fine cannot exceed 7 per cent of the turnover; and
    • for any subsequent undertakings there is maximum reduction of 20 per cent.
  95. 48.

    Are there sentencing guidelines?

  96. No, there are no specific sentencing guidelines in place.

  97. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?

  98. See question 30.

  99. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?

  100. See question 45.

  101. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?

  102. Except for fine reductions, there are no further incentives.

  103. 52.

    Does the competition authority publish guidance regarding sentencing reductions?

  104. No, the OCCP has not published any guidance on sentencing reductions.

  105. 53.

    Does the authority provide for "Amnesty Plus" benefits?

  106. Yes, the Act provides for ‘leniency plus’ benefits.

  107. 54.

    How is the Amnesty Plus discount calculated?

  108. Pursuant to the new rules on leniency plus, an undertaking who is not the first to report an infringement may receive an additional 30 per cent reduction in its fine, if it informs the OCCP of any other infringement in which it has participated. In such cases, the undertaking will have the status of first applicant for the additional collusion and will not be fined for it (subject to fulfilment of remaining statutory conditions).

    Cooperation obligations for sentencing reductions

  109. 55.

    Are the cooperation obligations similar to those for immunity applicants?

  110. The cooperation obligations are the same for the applicants seeking reduction and for immunity applicants.

  111. 56.

    Will the applicant be required to make a written confession?

  112. No, there is no requirement for an applicant to make a written confession.

  113. 57.

    Can third parties obtain access to the materials provided by the applicant?

  114. No, third parties cannot obtain access to the materials provided by the applicant seeking reduction of fine unless the applicant consents to such disclosure in writing.

  115. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?

  116. See question 30.

  117. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?

  118. See question 3.

  119. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?

  120. No, there is no requirement to provide privileged documents.

  121. 61.

    Can an applicant challenge the amount of the reduction of sanctions?

  122. Yes, the amount of fine can be challenged in the appeal to the court regarding a decision imposing a fine.

    Settlements

  123. 62.

    How is the settlement process initiated?

  124. The settlement procedure  allows the OCCP to reduce a fine which would be otherwise imposed if a party accepts such reduced fine, and admits to the factual findings made by the OCCP. The fine reduction is withdrawn if a party subsequently appeals from a decision that imposes a reduced fine to the court.

    The OCCP is empowered to open the settlement procedure if it considers that such procedure will contribute to the acceleration of the proceedings. The procedure itself will be initiated by the OCCP at its own initiative or upon the motion of any party to the antimonopoly proceedings (however, such motion is not binding upon the authority).

  125. 63.

    Is the amount of the sanction always fixed in the settlement agreement?

  126. If the OCCP decides to launch the settlement procedure, it shall deliver to each of the parties to the proceedings a proposal specifying the amount of fine it intends to impose and the underlying justification. Each addressee will have the possibility to comment on the proposal (and remark on the amount of fine) within 14 days of the receipt of the proposal. Subsequently, the OCCP reverts with its final position, which includes a fixed amount of fine. The settlement is reached once a party accepts the position of the OCCP included in its final statement.

  127. 64.

    What role, if any, do the courts play in the settlement process?

  128. The courts do not participate in the settlement process.

  129. 65.

    Are the settlement documents, including any factual admissions, made public?

  130. The Act does not formally address the confidentiality of settlement documents; instead they stipulate that "information" obtained by the OCCP during a settlement process shall not be disclosed. However, there is an express prohibition for disclosing the settlement documents to the parties seeking actions for damages in civil law proceedings. 

  131. 66.

    Is an admission of wrongdoing required?

  132. An undertaking is not required to include an admission of culpable behaviour in a settlement declaration. Such declaration shall contain confirmation on the factual findings regarding the case and acceptance of the fine proposed by the OCCP.

  133. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?

  134. Yes, the reduction is fixed at the level of 10 per cent of a fine that would be imposed in the absence of the settlement.

  135. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?

  136. No, each party to the proceedings is free to decide whether or not to enter into bilateral settlement discussions with the OCCP.

  137. 69.

    Will the authority settle with subjects who refuse to cooperate?

  138. Conducting settlement negotiations and execution of a settlement inherently require the cooperation of a party (insofar as the party needs to respond to a settlement proposal discussed with the OCCP, etc). The settlement process is independent from a leniency programme, and submission of a motion for immunity or reduction of fine is not a prerequisite for entering discussion on settlement.

  139. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?

  140. No, the Act expressly precludes the OCCP from using any information, evidence and statements submitted by a party during settlement proceedings against that party in any proceedings carried out by the OCCP.

  141. 71.

    May a party to the settlement agreement void the agreement after it is entered?

  142. The settlement will not be included in the agreement between the OCCP and a party, but it shall form a part of an administrative decision that ends the proceedings. A party cannot void the decision, it can only lodge an appeal against it to the court.

    In exceptional circumstances, the OCCP can annul the decision in its entirety if it agrees with the appeal on the merits and finds that the decision was rendered without a legal basis or in blatant breach of law. Otherwise, the OCCP shall issue a new decision reinstating the fine in the original amount.

  143. 72.

    Does the competition authority publish guidance regarding settlements?

  144. The OCCP has not published any guidance paper so far.

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Questions

    Immunity or a 100 per cent reduction in sanctions

  1. 1.

    What benefits are available to the first applicant to qualify?


  2. 2.

    Do the protections extend to current and former officers, directors and employees?


  3. 3.

    Is immunity available after an investigation begins?


  4. 4.

    What are the eligibility requirements before an investigation begins?


  5. 5.

    What are the eligibility requirements after an investigation begins?


  6. 6.

    Will the applicant have to admit to a violation of law?


  7. 7.

    Are ringleaders or initiators of the conduct eligible?


  8. 8.

    When must the applicant terminate its involvement in the conduct?


  9. 9.

    What constitutes termination of the conduct?


  10. 10.

    Will the applicant be required to make restitution to victims?


  11. 11.

    Can more than one applicant qualify for immunity?


  12. 12.

    Can an applicant qualify if one of its employees reports the conduct to the authority first?


  13. 13.

    Does the afforded protection extend to any non-antitrust infringements?


  14. 14.

    What confidentiality assurances are given to the first applicant to report?


  15. 15.

    Does the authority publish guidance regarding the application of the programme?


  16. 16.

    Do the rules for obtaining immunity in your jurisdiction conflict with the immunity rules in other jurisdictions?


  17. Immunity application and marker process

  18. 17.

    What is the initial process for making an application?


  19. 18.

    What information is required to secure a marker?


  20. 19.

    How much time will an applicant have to perfect its marker?


  21. 20.

    Can the deadline for perfecting the marker be extended?


  22. 21.

    What is required to perfect the marker?


  23. 22.

    Can the scope of the marker be expanded if additional information is discovered by the applicant?


  24. 23.

    Can an applicant lose its marker if a second applicant comes forward with better information?


  25. 24.

    What if the applicant’s investigation reveals that no violation exists?


  26. 25.

    What if the authority decides not to investigate?


  27. Immunity cooperation obligations

  28. 26.

    What is the applicant required to produce?


  29. 27.

    Will the applicant be required to make a written confession?


  30. 28.

    Can third parties obtain access to the materials provided by the applicant?


  31. 29.

    Will the applicant lose its protection if one or more of its employees refuses to cooperate?


  32. 30.

    Will the applicant lose its protection if one of its employees engages in obstructive conduct before or after the application?


  33. 31.

    Will the applicant be required to provide materials protected by attorney-client privileges or work-product doctrine?


  34. Granting immunity

  35. 32.

    How does the authority announce its promise not to charge or sanction?


  36. 33.

    Does the authority put its commitment in writing?


  37. 34.

    Who is given access to the document?


  38. 35.

    Does the authority publish a model letter for conferring immunity?


  39. Individual immunity or leniency

  40. 36.

    Is there an individual immunity programme?


  41. 37.

    What is the process for applying?


  42. 38.

    What are the criteria for qualifying?


  43. Revocation of immunity

  44. 39.

    On what basis can corporate immunity be revoked?


  45. 40.

    When can it be revoked?


  46. 41.

    What notice is required to revoke?


  47. 42.

    Can the applicant file a judicial challenge to a decision to revoke?


  48. Reduction in sanctions

  49. 43.

    Does the leniency programme allow for reductions in sanctions?


  50. 44.

    What is the process for seeking a reduction in sanctions?


  51. 45.

    Is there a marker process similar to immunity applications?


  52. 46.

    Are the reductions in sanctions fixed or discretionary?


  53. 47.

    How are the reductions in sanctions calculated?


  54. 48.

    Are there sentencing guidelines?


  55. 49.

    If an applicant's cooperation reveals self-incriminating information that expands the scope of the conduct known to the authority, will that conduct be factored into the fine calculation?


  56. 50.

    Are there fixed or discretionary discounts for the first applicant to cooperate after the immunity applicant (assuming there is an immunity applicant)?


  57. 51.

    Other than fine reductions, are there additional incentives offered to an applicant that is the first non-immunity applicant?


  58. 52.

    Does the competition authority publish guidance regarding sentencing reductions?


  59. 53.

    Does the authority provide for "Amnesty Plus" benefits?


  60. 54.

    How is the Amnesty Plus discount calculated?


  61. Cooperation obligations for sentencing reductions

  62. 55.

    Are the cooperation obligations similar to those for immunity applicants?


  63. 56.

    Will the applicant be required to make a written confession?


  64. 57.

    Can third parties obtain access to the materials provided by the applicant?


  65. 58.

    Will an applicant qualify for sentencing reductions if one or more of its employees refuse to cooperate?


  66. 59.

    Will the applicant lose its protections if one of its employees engages in obstructive conduct before or after the application?


  67. 60.

    Will the applicant be required to provide materials protected by attorney-client privilege or work-product doctrine?


  68. 61.

    Can an applicant challenge the amount of the reduction of sanctions?


  69. Settlements

  70. 62.

    How is the settlement process initiated?


  71. 63.

    Is the amount of the sanction always fixed in the settlement agreement?


  72. 64.

    What role, if any, do the courts play in the settlement process?


  73. 65.

    Are the settlement documents, including any factual admissions, made public?


  74. 66.

    Is an admission of wrongdoing required?


  75. 67.

    Do companies that enter into settlement agreements receive an automatic sentencing discount?


  76. 68.

    Do all of the subjects of an investigation have to agree to the settlement procedure before it is initiated by the authority?


  77. 69.

    Will the authority settle with subjects who refuse to cooperate?


  78. 70.

    If the settlement discussions terminate without an agreement, may any information provided or statements made during the negotiations be used against the parties?


  79. 71.

    May a party to the settlement agreement void the agreement after it is entered?


  80. 72.

    Does the competition authority publish guidance regarding settlements?