The OFT is keen to boost its regime on leniency as it regards
whistleblowing as key to maximising the benefits of the UK competition
regime. In aid of this the watchdog has published an interim note on
leniency and no-action with the aim of clarifying the principles it is
applying to persuade more companies and individuals to come forward.
Those of you who got the August Question of the Month right would
have made the somewhat controversial suggestion that undertakings
managed by women are less likely to blow the whistle on their
competitors. As we have reported throughout the summer, recent research
by the OFT has uncovered several interesting tendencies when it comes
to cartel members coming forward to report illegal behaviour.
The leniency guideline deals with leniency for both companies and
individuals. The best scenario for an undertaking approaching the OFT
is if it can obtain so called "Type A" leniency. Type A leniency is
available to a company which is the first to come forward with
information and it does so before the OFT has started investigating the
How would you go about putting in a request for leniency? According
to the note, an undertaking thinking about applying for leniency may
approach the OFT for confidential guidance. This would involve a
"hypothetical" discussion on a no-names basis after which the watchdog
will give its views as to whether Type A immunity is available.
If the OFT confirms that Type A immunity is obtainable, the legal
adviser will disclose the name of his client and apply for immunity on
their behalf. If Type A immunity is not available the legal adviser
does not need to disclose his/her client.
A less favourable outcome, but still of potentially great benefit,
is to secure "Type B" immunity. The grant of Type B immunity is
discretionary. It is expected, however, to be the norm rather than the
exception, provided that the company coming forward is the first to do
so. In Type B cases the undertaking will have approached the OFT after
the regulator has already started to investigate the matter.
An undertaking which approaches the OFT but which is not the first
to do so (and there is already an ongoing investigation) can still
obtain "Type C" immunity. The watchdog will grant leniency on a
discretionary basis in Type C cases.