The Court had no difficulty in rejecting DHL’s arguments on all three questions referred to it by the Council of State.
In relation to the first question, the court held that the ECN, being intended to encourage discussion and cooperation in the implementation of competition policy, does not have the power to adopt legally binding rules. Thus, in the absence of a centralised system at the EU level for the receipt and assessment of leniency applications in relation to infringements of Article 101 TFEU, the treatment of such applications sent to a national competition authority is determined by that authority under its national law. In any event, the Commission’s Leniency Notice relates only to leniency programmes implemented by the Commission itself, and the ECN Model Leniency Programme has no binding effect on the courts and tribunals of the Member States.
In relation to the second question, the Court noted again that, absent a European Union-wide system of fully harmonised leniency programmes, an application for leniency to a given authority is not to be considered as an application for leniency to any other authority, and the treatment of a leniency application is determined by the law of each Member State. National competition authorities are free to adopt leniency programmes, and each of those programmes is autonomous, not only in respect of other national programmes, but also in respect of the EU leniency programme.
That autonomy cannot, moreover, be affected by the fact that the various applications concern the same infringement of competition law. The autonomy of leniency programmes extends to the various applications for immunity submitted to the Commission and to the national competition authorities. The system is based on the principle that there is not, at the EU level, a single leniency application or a “main” application submitted in parallel to “secondary” applications, but rather applications for immunity submitted to the Commission and summary applications submitted to the national competition authorities, the assessment of which is the exclusive responsibility of the authority to which the application in question is addressed.
In any event, no provision of EU law in relation to cartels requires national authorities to interpret a summary application in the light of an application for immunity submitted to the Commission, irrespective of whether or not that summary application accurately reflects the content of the application submitted to the Commission.
As regards any obligation for the national competition authority to contact the Commission or an applicant, where the material scope of that summary application is more limited than that of the application for immunity, the Court noted that such an obligation could attenuate the duty of cooperation of leniency applicants, which is one of the pillars of any leniency programme.
It is therefore in the interest of an undertaking wishing to benefit from the leniency system to submit applications for immunity, not only to the Commission, but also to potentially competent national authorities. The applicant must ensure that any application which it submits is devoid of ambiguities as to its scope, especially as there is no obligation on the national competition authorities to assess a summary application in the light of an application for immunity submitted to the Commission.
As regards the third question, the Court noted that the ECN Model Leniency Programme indicated that the system of summary applications for immunity at the national level was open to the undertaking that had applied to the Commission for immunity from fines, whereas it was not clear whether that system was also open to undertakings that had applied to the Commission for a mere reduction of fines. This possibility was only expressly provided for after amendments made to that programme in 2012.
Nonetheless, the Court held that the fact that the ECN Model Leniency Programme, in the then-existing version, did not expressly refer to the possibility for the undertakings that had submitted an application for reduction of fines to lodge a summary application for immunity before the national competition authorities did not preclude authorities from accepting such an application. As the Court found in response to the first question, instruments adopted in the context of the ECN are not binding on national competition authorities.
As a result, Member States are not required to incorporate provisions of the ECN Model Leniency Programme in their leniency systems and, they are not precluded from adopting rules not present in that model programme or which diverge from it, in so far as that competence is exercised in compliance with EU law. In particular, Member States may not render the implementation of EU law impossible or excessively difficult and must ensure that the rules which they establish or apply do not jeopardise the effective application of Articles 101 TFEU and 102 TFEU. In that respect, the effective application of Article 101 TFEU does not preclude a national leniency system which allows the acceptance of a summary leniency application submitted by an undertaking which had not submitted an application for full immunity. On the contrary, that approach is in accordance with the underlying purpose and spirit of the establishment of the system of leniency applications, which should encourage the submission of such applications, not limit their number.