Apply at Your Own Risk: The Difficulties with Multi-Jurisdictional Leniency Applications

The international freight forwarding sector keeps things moving, also in the field of competition law. In the US, a large class action was launched against nearly all of the large freight forwarding companies passing on surcharges to their customers. This resulted in an international settlement negotiation, which is currently finalizing its second round. In the EU, the European Commission published an infringement decision against (largely the same) freight forwarding companies concerning no less than four price fixing cartels, resulting in a €169 million fine. In the slipstream of this investigation, the Austrian- and Italian competition authorities (amongst others) closed cases regarding infringements in their own territories.

It is against the backdrop of the cases of the European Commission (the Commission) and the Italian competition authority (the Autorità Garante della Concorrenza e del Mercato, or AGCM) that the Court of Justice was asked to deliver a preliminary ruling. This case did not directly concern the substantive infringements, but rather some procedural aspects of leniency – particularly the relationship between national leniency programmes, the Commission’s leniency programme and the status of the Model Leniency Programme adopted by the European Competition Network (ECN). This case commentary first discusses the questions put before the Court of Justice on the basis of a brief factual background. Then, the judgment is put in context by discussing the soft harmonisation achieved (or not achieved) by the Model Leniency Programme, as well as by contemplating further steps towards a more uniform leniency procedure throughout the European Union.