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CMA plans to be 'single port of call' for regulated businesses seeking leniency from cartel prosecutions and fines

Businesses operating in the financial services, energy or telecoms sectors are to be encouraged to report their involvement in cartels directly to the Competition and Markets Authority (CMA) under proposals put forward by the regulator.03 Jul 2017

The proposals relate to how a leniency framework operated by the CMA and sector regulators should operate in future.

Businesses involved in cartels risk criminal prosecutions and heavy fines. To encourage companies to report cartel behaviour, the CMA provides businesses with the opportunity to benefit from lenient treatment if they share details of their involvement and cooperate with its investigations.

Leniency can extend to full immunity from criminal prosecution for businesses that are first to report the matter, but others that are later to report can also obtain a discount on any potential fines that could be imposed if they also own up to their involvement and cooperate with the investigations.

At the moment, businesses operating in the regulated sectors in the UK are able to apply for leniency to either their sector regulator, such as Ofcom, the Financial Conduct Authority or Ofgem, or to the CMA, where the sector regulator has concurrent powers to enforce competition law.

However, the CMA said it wants to make the system clearer for businesses in regulated sectors. It therefore wants to change the current policy to steer the companies to direct their leniency applications to it in the first instance.

In a statement, the CMA said: "Informal arrangements have been in place to date and have operated on a case-by-case basis. These have involved the operation of a ‘single queue’ system, in which applicants need only apply to one authority in order to secure their place in the queue for leniency."

"However, the note proposes that, in future, the CMA should be the first point of contact for all leniency applicants for the purpose of the ‘single queue’ system, giving certainty to businesses who might otherwise be unsure whether to apply to the relevant sector regulator or the CMA in any particular case," it said.

Competition law expert Robert Eriksson of Pinsent Masons, the law firm behind Out-Law.com, said: "This is a welcome initiative that would bring clarity and it also makes sense, as only the CMA can grant immunity from criminal prosecution."

"It is important to stress, though, that this is purely for leniency applications to obtain fine reductions for infringing competition law. Regulatory self-reporting, such as to the FCA for financial services firms, would of course still be made to that regulator, not to the CMA. However, when such reporting has to be done in parallel with a leniency application to the CMA, it is important that such coordination is managed carefully and appropriately following the taking of legal advice," he said.

The CMA's consultation (20-page / 423KB PDF) closes on 28 July.