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Annex 4-B

Key Aspects of Revised U.S. Antitrust Division Corporate Leniency Program(1)

Leniency Before an Investigation Has Begun or Part 'A' amnesty will be granted automatically to a corporation reporting illegal activity before an investigation has begun, if the following six conditions are met: (1) At the time the corporation comes forward to report the illegal activity, the Division has not received information about the illegal activity being reported from any other source; (2) the corporation, upon its discovery of the illegal activity being reported, took prompt and effective action to terminate its part in the activity; (3) the corporation reports the wrongdoing with candor and completeness and provides full, continuing and complete cooperation to the Division throughout the investigation; (4) the confession of wrongdoing is truly a corporate act, as opposed to isolated confessions of individual executives or officials; (5) where possible, the corporation makes restitution to injured parties; and (6) the corporation did not coerce another party to participate in the illegal activity and clearly was not the leader in, or originator of, the activity.

Alternative Requirements for Leniency or Part 'B' leniency may be available if a corporation comes forward to report illegal antitrust activity and does not meet all six of the conditions set out in Part A. The corporation, whether it comes forward before or after an investigation has begun, will be granted leniency if the following seven conditions are met: (1) The corporation is the first one to come forward and qualify for leniency with respect to the illegal activity being reported; (2) the Division, at the time the corporation comes in, does not yet have evidence against the company that is likely to result in a sustainable conviction; (3) the corporation, upon its discovery of the illegal activity being reported, took prompt and effective action to terminate its part in the activity; (4) the corporation reports the wrongdoing with candor and completeness and provides full, continuing and complete cooperation that advances the Division in its investigation; (5) the confession of wrongdoing is truly a corporate act, as opposed to isolated confessions of individual executives or officials; (6) where possible, the corporation makes restitution to injured parties; and (7) the Division determines that granting leniency would not be unfair to others, considering the nature of the illegal activity, the confessing corporation's role in it, and when the corporation comes forward.

1. U.S. Department of Justice Antitrust Division, Corporate Leniency Policy (August 10, 1993).



Comparison of Anticartel Penalties in Select Jurisdictions

Country What Is The Maximum Fine For Corporations? What Products Included In Calculating Fine? What Markets Included In Calculating Fine? For What Time Period? Individual Liability Imposed? What Is The Maximum Penalty? Amnesty or Leniency Policy?
US

The largest of:

(1) USD $10 million;

(2) twice the gross gain derived by the cartel members from the crime; or

(3) twice the gross loss suffered by the crime victims

Limited to sales of products/services affected by violation (the "volume of affected commerce") U.S. commerce only,

unless this grossly understates seriousness of firm's role in offense, then worldwide sales

Duration of the cartel Yes. 3 yrs imprisonment and a fine the greatest of:

(1) USD $350,000;

(2) twice gross gain derived by the cartel members from the crime; or (3) twice the gross loss suffered by the crime victims

Yes
Canada (1) Conspiracy (price fixing, market share, customer allocation) not to exceed CAD $10 million

(2) Bidrigging fine in discretion of the court

Limited to sales of products/services affected by violation Canadian commerce only, unless this grossly understates seriousness of firm's role in offense, then worldwide sales Duration of the cartel Yes. Conspiracy and bidrigging (1) same fines as for corporations, or

(2) imprisonment for a term not exceeding 5 yrs., or

(3) both

Yes
EU 10% of turnover for the company "Turnover" means total sales of the company Worldwide commerce One preceding year No Yes
France 5% of turnover for the company, up to maximum of FF 10 million "Turnover" means total sales of the company French commerce only One preceding year Yes. 4 yrs imprisonment and a fine of FF 500,000 No
Germany DM 1 million, plus up to 3 times the additional receipts Limited to sales of products/services affected by violation German commerce only Duration of the cartel Yes. DM 1 million, plus up to 3 times the additional receipts No
Japan Admin. Surcharge: 6% of the affected sales (3% for small companies) Admin: Limited to sales of products/services affected by violation Admin: Japanese commerce only Admin: Duration of cartel, up to max. of 3 yrs. Administrative: No. No
Criminal Fine: ¥100 million Crim: No sentencing guidelines Crim: No sentencing guidelines Crim: Duration of Cartel Criminal: Yes. 3 years imprisonment and ¥5 million
UK [draft] to take effect 3/00]

10% of turnover for the company, up to maximum of 3 yrs.

"Turnover" means total sales of the company UK commerce only Duration of cartel, up to max. of 3 yrs. No [Yes, as drafted]

Prepared by ICPAC staff (November 1999) based on "International Fines in Cartel Enforcement Matters - Comparison Table" prepared by U.S. Dept. of Justice, Antitrust Division, Office of Criminal Enforcement (Sept. 30, 1999).