Division 9.3.1 Deltafina’s application for immunity

The Leniency Notice makes the granting of final immunity conditional upon the fulfilment of the cumulative conditions set out in point 11 of the Notice. In particular point 11(a) requires undertakings (having been granted conditional immunity) to cooperate ‘fully, on a continuous basis […]’.

At the oral hearing of 22 June 2004 it became apparent that Deltafina had divulged its Immunity application on the occasion of a meeting of APTI’s managing committee which was also attended by representatives of Dimon, Transcatab and Trestina. Such disclosure occurred before the Commission had an opportunity to carry out the investigations and was well capable of jeopardising them.

The Decision concludes that by so acting Deltafina breached the co-operation obligation to which it was bound by virtue of point 11(a) of the Leniency Notice. Accordingly, immunity cannot be granted to Deltafina.

In reply to Deltafina’s defence on this point, the Decision confirms that point 11(a) of the Leniency Notice includes a duty to keep the immunity application confidential, which is justified by the need to ensure that the result of the subsequent investigations which the Commission needs to carry out be not compromised. Deltafina was aware of the Commission’s intention to carry out surprise investigations. Inspection were actually organised and occurred as announced to Deltafina at a meeting between Deltafina and the Commission services.

A certain degree of difficulty in keeping an immunity application confidential is inherent in all cases where a cartel participant decides to apply for immunity. However, any such difficulty (or the fact of having informed the Commission of it) does not licence the immunity applicant to voluntarily disclose its immunity application at meetings with competitors.