September 25, 2013
The Competition Bureau has issued revised Immunity Program FAQs and Leniency Program FAQs (see: Competition Bureau Publishes Revised Immunity and Leniency FAQs). In making the announcement, relating to the first update to its Immunity/Leniency Program FAQs since 2010, the Bureau said:
“The updated FAQs address additional topics, such as how the Bureau treats immunity and leniency markers in the context of investigations that it does not intend to pursue, and expand on and clarify existing topics, such as the proffer (statement provided by the immunity or leniency applicant) process, indirect sales, and how the Bureau determines its fine recommendations.”
The Commissioner of Competition, John Pecman, first indicated the Bureau was preparing new Immunity/Leniency FAQs last January in a speech delivered while Interim Commissioner (as an effort to clarify key aspects of the Bureau’s two programs).
While the Bureau has a variety of enforcement tools available for the detection and investigation of criminal competition matters, including the ability to obtain search warrants, compulsory production orders and its recently announced new “whistleblowing intiative”, its Immunity and Leniency Programs remain its top criminal enforcement tools. In this respect, several of the Bureau’s most significant cases this year (including record bid-rigging fines of $5 million and $30 million in its ongoing auto parts cartel investigation – see here and here) have been as a result of parties cooperating with the Bureau under its Immunity and Leniency Programs.
Under the Bureau’s Immunity Program, a party or company implicated in criminal conduct under the Competition may offer to cooperate with the Bureau in an investigation and request immunity (i.e., full immunity from prosecution for criminal offences under the Act). The criminal provisions of the Act include sections 45 (price-fixing, market allocation/division and output/supply restriction agreements between competitors) and 47 (bid-rigging agreements). In general, in order to be eligible under the Bureau’s Immunity Program, the Bureau must either be unaware of an offence (and the immunity applicant is the first to disclose it) or the Bureau is aware of the offence but does not yet have enough evidence to refer the matter for prosecution. The Bureau’s Immunity Program has a number of other requirements as well (see: here).
Under the Bureau’s Leniency Program, parties that have contravened criminal provisions of the Act that are not entitled to full immunity (e.g., not “first in”) may still qualify for leniency (fine reductions of 30-50%, though guilty pleas are required, which is a significant distinction between the two programs).
The requirements of both Programs are set out in the Bureau’s Immunity and Leniency Bulletins.
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