Appendix F. Specific Requirements of Leniency Programs in Key Jurisdictions

• Pages: 325-355

325

APPENDIX F

SPECIFIC REQUIREMENTS OF LENIENCY

PROGRAMS IN KEY JURISDICTIONS1

This Appendix explores the key jurisdictions with leniency programs

around the world, including in the Americas (United States, Canada,

Mexico, Brazil), Europe (European Commission, Germany, United

Kingdom), Asia (Japan, South Korea, China, Taiwan, Singapore), and

Australia and New Zealand. It discusses the responsible agencies in each

jurisdiction and reviews each program’s basic requirements for amnesty

or immunity and subsequent leniency positions, including requirements

to secure and perfect markers, limitations on who or what may qualify,

and what benefits are available. The below chart summarizes various

aspects of the leniency programs and requirements in each of these key

jurisdictions.

Jurisdiction Criminal

Regime

Civil /

Agency

Regime

Corporate

Leniency

Allowed

Individual

Leniency

Allowed

Written

Submission

Required

United

States X

X

X

X

X

Canada

X

X

X

X

Mexico

X

X

X

X

X

2

1. The information in this appendix is current as of October 2021.

2. Although not required, a written submission may be tendered along with

evidence provided in oral format. From an applicant’s initial meeting

with the Comisión Federal de Competencia Económica (COFECE), any

oral submission or evidence provided by the applicant is put into a written

record thereof, along with other written submissions and evidence, which

are kept in the case file. COFECE will issue additional requests for

information in writing, and, responses thereafter are submitted in writing;

written records are also kept of any additional evidence and/or testimony

offered by or obtained through the applicant during the proceedings. See

infra notes 30-38 and accompanying text on COFECE.

326 International In vestigations and Merger Reviews

Jurisdiction Criminal

Regime

Civil /

Agency

Regime

Corporate

Leniency

Allowed

Individual

Leniency

Allowed

Written

Submission

Required

Brazil X

X

X

X

X

X

X

X

"X

X

3

European

Union X

X

X

"X

X

4

Germany

X

X

X

X

"X

X

5

United

Kingdom

X

X

X

X

3. “The confession of wrongdoing can be made orally or in writing.

However, the Leniency Agreement is itself a written agreement that

contains an express clause referring to admission of the participation of

the company and/or individual in the antitrust conspiracy reported.”

CADE LENIENCY PROGRAM, supra Chapter V, note 24, at 16 (Question

13).

4. At the applicant’s request, “the Commission may accept that corporate

statements be provided orally unless the applicant has already disclosed

the content of the corporate statement to third parties. Oral corporate

statements will be recorded and transcribed at the Commission’s

premises.” Commission Notice, supra Chapter V, note 23, ¶ 32.

Undertakings will be granted the opportunity to check the technical

accuracy of the recording and to correct the substance and, after explicit

or tacit approval, to check the accuracy of the transcript.

5. An application can be filed verbally and/or in English; if submitted in

English, the applicant is obliged to provide a written German translation

without undue delay. See FCO NOTICE, supra Chapter V, note 53, ¶¶ 14–

15.