The International Comparative Legal Guide to:

A practical cross-border insight into cartels and leniency

9th Edition

ICLGCartels & Leniency 2016

Published by Global Legal Group, in association with CDR, with contributions from:

Advokatfirmaet Wiersholm ASAffleck Greene McMurtry LLP AGON PARTNERSAnjarwalla & Khanna AdvocatesBarnes & Thornburg LLPBloomfield Law PracticeBorenius Attorneys LtdCárdenas & Cárdenas AbogadosCLK AvocatsCrowell & MoringDebarliev, Dameski & Kelesoska, Attorneys at LawDLA Piper Nederland N.V.Drew & Napier LLCELIG, Attorneys-At-LawGecić | Law

Gjika & Associates Attorneys at LawINFRALEXKeane Vgenopoulou & Associates LLCKhaitan & CoKing & Wood MallesonsMorais Leitão, Galvão Teles, Soares da Silva & Associados, Sociedade de Advogados, R.L.Nagashima Ohno & TsunematsuOdvetniška pisarna Soršak d.o.o. Pachiu and AssociatesPreslmayr Rechtsanwälte OGSkadden, Arps, Slate, Meagher & Flom LLPSysouev, Bondar, KhrapoutskiWragge Lawrence Graham & Co LLP

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Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

DisclaimerThis publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice.Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication.This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

The International Comparative Legal Guide to: Cartels & Leniency 2016

General Chapters:

Country Question and Answer Chapters:

1 Disclosure and Protection of Evidence in Light of the Damages Directive and Recent EU Case Law – Ingrid Vandenborre & Thorsten C. Goetz, Skadden, Arps, Slate, Meagher & Flom LLP 1

2 Competition ‘Collective Proceedings’ in the UK – a New Class of Action – Bernardine Adkins, Wragge Lawrence Graham & Co LLP 5

3 Albania Gjika & Associates Attorneys at Law: Oltion Toro & Silvi Tola 10

4 Australia King & Wood Mallesons: Sharon Henrick & Wayne Leach 16

5 Austria Preslmayr Rechtsanwälte OG: Dieter Hauck & Esther Sowka-Hold 24

6 Belarus Sysouev, Bondar, Khrapoutski: Alexander Bondar & Karyna Loban 31

7 Belgium Crowell & Moring: Thomas De Meese 37

8 Canada Affleck Greene McMurtry LLP: W. Michael G. Osborne & Michael Binetti 43

9 China King & Wood Mallesons: Susan Ning & Hazel Yin 50

10 Colombia Cárdenas & Cárdenas Abogados: Alberto Zuleta-Londoño & Ximena Zuleta-Londoño 60

11 Cyprus Keane Vgenopoulou & Associates LLC: Thomas Keane & Christina Vgenopoulou 64

12 European Union King & Wood Mallesons: Simon Holmes & Sarah Persky 71

13 Finland Borenius Attorneys Ltd: Ilkka Aalto-Setälä & Eeva-Riitta Siivonen 82

14 France King & Wood Mallesons: Marc Lévy & Natasha Tardif 89

15 Germany King & Wood Mallesons: Tilman Siebert & Dr. Michaela Westrup 98

16 Hong Kong King & Wood Mallesons: Martyn Huckerby & Edmund Wan 106

17 India Khaitan & Co: Manas Kumar Chaudhuri & Aditi Gopalakrishnan 112

18 Italy King & Wood Mallesons: Riccardo Croce & Elisa Baretta 118

19 Ivory Coast CLK Avocats: Lassiney Kathann Camara & Eloi Kouakou Yao 128

20 Japan Nagashima Ohno & Tsunematsu: Eriko Watanabe 133

21 Kenya Anjarwalla & Khanna Advocates: Anne Kiunuhe & Ciru Longden 140

22 Macedonia Debarliev, Dameski & Kelesoska, Attorneys at Law: Dragan Dameski & Jasmina Ilieva Jovanovik 146

23 Netherlands DLA Piper Nederland N.V.: Martijn van Wanroij & Firda Pasaribu 153

24 Nigeria Bloomfield Law Practice: Bode Adegoke & Busayo Adedeji 160

25 Norway Advokatfirmaet Wiersholm AS: Anders Ryssdal & Monica Hilseth-Hartwig 165

26 Portugal Morais Leitão, Galvão Teles, Soares da Silva & Associados, Sociedade de Advogados, R.L.: Inês Gouveia & Luís do Nascimento Ferreira 171

27 Romania Pachiu and Associates: Remus Ene & Adelina Somoiag 182

28 Russia INFRALEX: Artur Rokhlin & Victor Fadeev 188

29 Serbia Gecić | Law: Bogdan Gecić & Marija Papić 195

30 Singapore Drew & Napier LLC: Lim Chong Kin & Scott Clements 203

31 Slovenia Odvetniška pisarna Soršak, Vagaja in odvetniki, d.o.o.: Jani Sorsak 209

32 Spain King & Wood Mallesons: Ramón García-Gallardo & Manuel Bermúdez Caballero 216

33 Switzerland AGON PARTNERS: Patrick L. Krauskopf & Fabio Babey 230

34 Turkey ELIG, Attorneys-At-Law: Gönenç Gürkaynak & Öznur İnanılır 236

35 United Kingdom King & Wood Mallesons: Simon Holmes & Philipp Girardet 244

36 USA Barnes & Thornburg LLP: Kendall Millard & Brian R. Weir-Harden 255

Contributing EditorSimon Holmes and Philipp Girardet, King & Wood Mallesons

Head of Business DevelopmentDror Levy

Sales DirectorFlorjan Osmani

Account DirectorsOliver Smith, Rory Smith

Senior Account ManagerMaria Lopez

Sales Support ManagerToni Hayward

EditorsRachel Williams Caroline Collingwood

Senior EditorSuzie Levy

Group Consulting EditorAlan Falach

Group PublisherRichard Firth

Published byGlobal Legal Group Ltd.59 Tanner StreetLondon SE1 3PL, UKTel: +44 20 7367 0720Fax: +44 20 7407 5255Email: info@glgroup.co.ukURL: www.glgroup.co.uk

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Chapter 11

Keane Vgenopoulou & Associates LLC

Thomas Keane

Christina Vgenopoulou

Cyprus

■ limits production, distribution, technical development to the prejudice of consumers;

■ applies dissimilar conditions to equivalent transactions, thereby placing certain undertakings at a competitive disadvantage; and

■ makes the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.

Abuse of a relationship of economic dependence is also prohibited by section 6, which can arise in circumstances where an undertaking (being a client, supplier, producer, representative, distributor or commercial collaborator) does not have an equal alternative solution. The abusive conduct can arise from such conduct as imposition of unfair trading conditions, application of discretionary treatment, interruption of trade relationships or sudden and inexcusable interruption of long-term trade relationships.

1.3 Who enforces the cartel prohibition?

The Commission for the Protection of Competition (the “CPC”) is entrusted with exclusive power to enforce the cartel prohibition under sections 3 and 6 of the Competition Laws and Articles 101 and 102 of the TFEU, and has the power to carry out a cartel investigation whether at its own initiative or as the result of a complaint being filed with the CPC by a third party having a legitimate interest. The CPC is comprised of the Committee of the CPC, which is comprised of a full-time chairman and four committee members, and the Service, which assists the CPC in the conduct of investigations. The CPC is an independent body.

1.4 What are the basic procedural steps between the opening of an investigation and the imposition of sanctions?

The CPC (or a sectoral regulator having competent concurrent jurisdiction) starts an investigation acting either (i) on its own initiative possessing its own market information, (ii) following a complaint received, or (iii) following an application for leniency. The CPC will exercise its powers, in particular its power to obtain information and data, so as to enable the Service to carry out an investigation. The procedure involves the CPC sending a letter of request to the undertaking(s) under investigation requesting the delivery of the information or data. This request must, however, clearly state the legal basis for the request, the reasoning of the request, the information required, a reasonable time limit within which to provide such information (being not less than 20 days)

1 The Legislative Framework of the Cartel Prohibition

1.1 What is the legal basis and general nature of the cartel prohibition, e.g. is it civil and/or criminal?

The legal basis of the cartel prohibition under Cyprus law is sections 3 and 6 of the Protection of Competition Law, Law 13(I)/2008 as amended by the Protection of Competition (Amending) Law and Law 41(I)/2014 (together the “Competition Laws”). In addition, in accordance with Article 3(1) of Council Regulation 1/2003, the Cyprus Competition Authority must also apply Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) to any such prohibited conduct.

1.2 What are the specific substantive provisions for the cartel prohibition?

Section 3 of the Competition Laws prohibits all agreements between undertakings or associations of undertakings and any concerted practices that have as their object or effect the elimination, restriction or distortion of competition within the Republic. Section 3(1) lists non-exhaustive examples of such prohibited conduct, which are:■ directly or indirectly fixing purchase or selling prices or any

other trading conditions;■ limit or control production, markets, technical development

or investments;■ divide markets or sources of supply;■ apply dissimilar conditions to equivalent transactions with

other trading parties thereby placing them at a competitive disadvantage; and

■ making the conclusion of contracts subject to acceptance by other parties of supplementary obligations which, by their nature or according to commercial usage, have no connection with the subject of the contracts.

Any agreement, decision or concerted practice found to infringe section 3(1) will be void ab initio with no prior decision of the Competition Authority being required.The Competition Laws do permit exemptions – see the answer to question 1.5 below.Section 6 of the Competition Laws prohibits conduct that is abusive of a dominant position, particularly if it:■ affects or may affect the direct or indirect fixing of unfair

purchase or selling prices or any other unfair, in the circumstances, trading conditions;

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of competition in Cyprus. In accordance with Council Regulation 1/2003, if the CPC considers that a cartel may affect trade between Member States, it must apply the provisions of Article 101 of the TFEU.

2 Investigative Powers

2.1 Summary of general investigatory powers.

Table of General Investigatory Powers

Investigatory power Civil / administrative Criminal

Order the production of specific documents or information

Yes Yes

Carry out compulsory interviews with individuals

Yes Yes

Carry out an unannounced search of business premises

Yes Yes

Carry out an unannounced search of residential premises

Yes* Yes*

■ Right to ‘image’ computer hard drives using forensic IT tools

Yes Yes

■ Right to retain original documents No No

■ Right to require an explanation of documents or information supplied

Yes Yes

■ Right to secure premises overnight (e.g. by seal)

Yes Yes

Please Note: * indicates that the investigatory measure requires authorisation by a court or another body independent of the competition authority.

2.2 Please list specific or unusual features of the investigatory powers referred to in the summary table.

The right to carry out compulsory interviews with individuals is part of the recent amendments introduced under the Protection of Competition (Amending) Law, Law 41(I)/2014 to strengthen the investigative and enforcement powers of the CPC. The CPC has the statutory right to secure and seal business premises and books, records etc., overnight for so long as is and to the extent necessary for the investigation. To date the CPC has never tried to seal premises overnight, thus this has yet to be tested in the courts.

2.3 Are there general surveillance powers (e.g. bugging)?

The Competition Laws are silent on this issue. While the courts do, under strict conditions, have the power to order such surveillance, it has never been used in Cyprus as part of any investigations being conducted by the CPC or the Service.

and the penalties for failing to comply. However, the CPC is not permitted to go on a fishing expedition.The CPC is under a duty to ensure adequate protection for the rights of the undertaking under investigation, in particular as to the secrecy and confidentiality of the information provided, and to use the information provided purely for the purposes of the investigation.Upon conclusion of the preliminary investigation, the Service will prepare a report, and if there is a finding of a prima facie case, the CPC will forward a statement of objections to the undertaking(s) concerned which must set out the facts upon which it relies, its reasoned provisional conclusions and the action likely to be taken (e.g. fines). The undertaking(s) is allowed to have access to the CPC’s file, to file written submissions in reply to the objections raised and to attend an oral hearing to respond to the objections raised. If the CPC concludes that it has sufficient evidence to support a finding of prohibited cartel behaviour, it will issue a fully reasoned decision finding the infringement and impose fines on the infringing undertaking(s). The decision of the CPC is reviewable by appeal before the Supreme Court. The decision of the Supreme Court is final.Following the recent amendment (the Protection of Competition (Amending) Law, Law 41(I)/2014), the CPC, without going into a full hearing on the matter, now has the power to issue a decision that the prohibited cartel behaviour should cease and the infringing undertaking(s) may give certain commitments which may be made binding by the CPC. Failure to adhere to such binding commitments can result in a fine of up to 10% of the turnover during the preceding financial year.

1.5 Are there any sector-specific offences or exemptions?

The Competition Laws exclude (i) agreements relating to wages, terms of employment and working conditions, and (ii) undertakings entrusted with the operation of services of general economic interest or state monopoly in so far as the application of the Competition Laws obstructs the performance in law or in fact of the particular tasks assigned to them by the State.In addition, the CPC has, pursuant to the powers granted to it under the Competition Laws, made a number of orders giving block exemptions in certain sectors, subject to the satisfaction of certain conditions. These include:■ certain categories of agreements, decisions and practices in

the insurance sector;■ certain categories of agreements and concerted practices in

the motor vehicle sector;■ vertical agreements and concerted practices;■ technical cooperation in the field of transport;■ agreements, decisions and concerted practices in the field of

road transport;■ agreements, decisions and concerted practices between liner

shipping companies (consortia); ■ agreements between air transport undertakings concerning

consultations on passenger tariffs on scheduled air services and slot allocations at airports;

■ agreements, decisions and concerted practices in relation to the production or trade in agricultural products; and

■ liner conferences in maritime transport.

1.6 Is cartel conduct outside your jurisdiction covered by the prohibition?

The Competition Laws will apply to actions outside Cyprus that have as their object or effect the prevention, restriction or distortion

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2.6 Is in-house legal advice protected by the rules of privilege?

The position of in-house legal advice and whether it is protected by privilege has not been addressed by the Cyprus courts in the context of cartel cases. The position, however, would seem to be similar to that prevailing in the EU currently, viz. there is no privilege for in-house lawyers’ communications.

2.7 Please list other material limitations of the investigatory powers to safeguard the rights of defence of companies and/or individuals under investigation.

Although the matter is not dealt with expressly in the Competition Laws, it would appear that the better position is that, given the nature of the CPC’s investigation powers, an undertaking or its employees being asked for oral explanations during a dawn raid should be entitled to exercise the right against self-incrimination.

2.8 Are there sanctions for the obstruction of investigations? If so, have these ever been used? Has the authorities’ approach to this changed, e.g. become stricter, recently?

The Competition Laws do impose sanctions for obstructive behaviour in the conduct of an investigation.In the case of a request for delivery of information and data to the CPC, if an undertaking fails to provide the required information within the prescribed time, or intentionally or negligently provides false, incomplete, inaccurate or misleading information, it is liable to a lump sum fine of EUR 85,000 and a periodic penalty of EUR 17,000 per day of continued default.In the case of a dawn raid, there are both civil and criminal penalties. The civil penalties are a lump sum fine of EUR 85,000 and a periodic penalty of EUR 17,000 per day where the undertaking intentionally or negligently provides books, records or accounts that are incomplete or falsified or where the undertaking refuses to comply with the inspection. A criminal penalty is also imposed for failing to comply with an inspection or concealing, destroying or falsifying information, records, books or accounts, or providing false, incomplete, inaccurate or misleading information or refusing or omitting to provide such information. The criminal penalty on conviction is a fine of EUR 85,000 and/or one year’s imprisonment.

3 Sanctions on Companies and Individuals

3.1 What are the sanctions for companies?

Any agreement, practice, decision or action that is determined to violate s.3 and/or s.6 of the Competition Laws or Articles 101 and/or 102 of the TFEU is void and unenforceable. In addition, the CPC has the statutory power to impose financial and other sanctions in respect of such infringements. In particular the CPC can:■ impose administrative fines calculated according to the

seriousness and duration of the infringement at either (i) an amount not exceeding 10% of the total turnover of the undertaking, or (ii) an amount not exceeding 10% of the total turnover of all undertakings that are members of the offending association of undertakings, where the turnover relates to the turnover of the immediately preceding year;

2.4 Are there any other significant powers of investigation?

The primary powers of investigation of the CPC are those of collecting information, which is done either (i) by addressing a formal written request for information to the undertaking(s) or associations of undertakings concerned, as well as to other natural or legal persons, or (ii) by carrying out unannounced inspections (so-called dawn raids) at any office, premises, land and means of transport (but excluding residential premises, which can only be searched following the obtaining of a court order).If any undertaking(s) or association of undertakings fails to provide the requested information within the prescribed period or provides inaccurate or misleading information, the CPC may impose fines (both a lump sum – EUR 85,000 and a periodic sum – EUR 17,000 per day of default).In the course of a dawn raid, the CPC may examine all books and records relating to the business, make copies of all such books and records and/or ask any officer or employee for explanations which may be recorded. The dawn raids are carried out by the Service on the request of the CPC, who may be accompanied by such other public officers as the CPC deems necessary. The request of the CPC to the Service shall be in writing specifying the (i) subject matter and purpose of the investigation, (ii) date it is to commence, (iii) basis for the inspection, and (iv) sanctions if the undertaking(s) fail to comply.On arrival at the premises, the officers of the Service must show evidence of their identity and authorisation and hand over a written notice explaining the subject matter and purpose of the unannounced inspection. In the case of a dawn raid there is a possibility for civil and criminal penalties. If the undertaking(s) negligently or intentionally provide the requested books, records, accounts or other business records in an incomplete or falsified manner the CPC can impose a lump sum fine of EUR 85,000 and a periodic penalty of EUR 17,000 per each day that the default continues.Undertakings refusing or failing to comply with a request for information on a dawn raid or concealing, destroying or falsifying any information, record, book or account or providing false, incomplete, inaccurate or misleading information, declarations, records or books shall be guilty of a criminal offence and liable on conviction to a sentence of up to one year and/or a fine of EUR 85,000.

2.5 Who will carry out searches of business and/or residential premises and will they wait for legal advisors to arrive?

The searches are carried out by officers of the Service on the request of the CPC, accompanied by such other public servants as are deemed necessary by the CPC for the purpose, including members of the police.The undertaking(s) has the right to consult a lawyer during the inspection but the presence of a lawyer is not a legal requirement for the validity of the inspection. As a matter of practice a waiting period of 30 minutes is afforded for legal counsel to appear.Searches at residential premises can only take place upon obtaining a court order.

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(i) commencement of an investigation by the CPC;(ii) the written request of the CPC for information;(iii) the written request of the CPC to conduct an investigation;

and/or(iv) the written request to conduct a sectoral investigation.

3.5 Can a company pay the legal costs and/or financial penalties imposed on a former or current employee?

There are no provisions in the Competition Laws prohibiting a company from paying the legal costs and/or financial penalties imposed on a former or current employee.

3.6 Can an implicated employee be held liable by his/her employer for the legal costs and/or financial penalties imposed on the employer?

The Competition Laws do not deal with this issue but as a general principle it would be difficult for an employer to recover costs and penalties imposed on it from an employee.

4 Leniency for Companies

4.1 Is there a leniency programme for companies? If so, please provide brief details.

There is an immunity and leniency programme (the “Programme”) which outlines the policy and procedures for applying for immunity and reductions in fines in cartel cases. However, nothing in this Programme curtails the discretion of the CPC in the exercise of its powers or functions.(A) ImmunitySubject to the requirements below, the CPC will grant immunity if the applicant is the first to come forward and submit evidence which, in the CPC’s view, will enable it to find an infringement in connection with a prohibited cartel under the Competition Laws.Requirements(i) the applicant must come forward before the CPC has

gathered sufficient evidence to reach a preliminary (prima facie) finding of infringement of the Competition Laws.

(ii) the applicant must take effective steps, to be agreed with the CPC, to terminate its participation in the illegal activity;

(iii) the applicant must do nothing to alert its former associates that it has applied for immunity under the Programme;

(iv) the applicant must not have coerced any other undertaking to participate in the cartel and illegal activity and must not have acted as instigator or have played a lead role in the illegal activity; and

(v) the applicant must provide timely and complete cooperation to the CPC throughout the course of its investigation. In particular the applicant must:(a) reveal all infringements under the Competition Laws that

it may have been involved in;(b) provide full, frank and truthful disclosure of all evidence

and information known, available to it or under its control, including all documentary and other records wherever located, relating to offences under investigation, and must make any misrepresentation of any material facts; and

(c) cooperate fully on a continuous basis and expeditiously with the CPC throughout the investigation and hearing stages.

■ compel the undertaking or association of undertakings to cease the infringement within a fixed time limit and to avoid any repetition of the infringement, or if the infringement is terminated before the decision of the CPC may make a finding of reconnaissance;

■ impose terms and measures of a behavioural and/or corrective manner necessary to bring an end to the infringement;

■ if the infringement continues, the CPC can impose a fine up to 5% of the average daily turnover of the preceding financial year per day the infringement continues;

■ in connection with a decision that infringing activity should cease, make any commitments given by undertakings or associations of undertakings in bringing an infringement to an end, binding on the undertakings or association of undertakings. The CPC can make the decision subject to time limits and will confirm no further action will be taken; and

■ if undertakings refuse to comply with the binding commitments made, impose a fine of up to 10% of the turnover for the preceding financial year.

The CPC has the power to take interim measures, a power that was recently extended under the Protection of Competition (Amending) Law, Law 41(I)/2014, to take account of the urgency of the matter where there is a serious danger of irreparable damage to competition. In addition, to issue interim measures there must be a strong prima facie case of infringement.

3.2 What are the sanctions for individuals?

There are no particular sanctions per se aimed at individuals but two points need to be remembered:(i) in the context of criminal sanctions against corporate entities,

these will be imposed against directors and others in control of the undertaking; and

(ii) under the recent Protection of Competition (Amending) Law, Law 41(I)/2014, the term “undertaking” has now been defined widely and arguably includes both natural persons and legal persons.

Accordingly sanctions considered in the answer to question 3.1 above can equally be considered here.

3.3 Can fines be reduced on the basis of ‘financial hardship’ or ‘inability to pay’ grounds? If so, by how much?

The Competition Laws do not contain any such reductions nor, as a matter of practice, does the CPC apply such reductions.

3.4 What are the applicable limitation periods?

The Competition Laws do impose time limits within which the CPC has the power to impose financial penalties; otherwise the CPC is deprived of such power. The limitation periods are:(i) in respect of imposition of fines in connection with breaches

of requests for information, during the conduct of an investigation or during a sectoral investigation, three years from the date of the request for information or conduct of the investigation, as the case may be; and

(ii) in all other cases five years.The time shall begin to run on the day that the infringement is committed or, in the case of continuing or repeated infringements, the day the infringement ended.The running of the limitation period is interrupted by:

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4.5 At what point does the ‘continuous cooperation’ requirement cease to apply?

The continuous cooperation requirement remains up to and including the issue of a decision by the CPC. In coming to its decision, the CPC will evaluate the cooperation of the applicant in determining the level of fine reduction. If an applicant at any stage fails in the cooperation requirement, it may result in a loss of any favourable treatment.

4.6 Is there a ‘leniency plus’ or ‘penalty plus’ policy?

There are no penalty plus or leniency plus policies. The effect of going in after the first applicant is a lesser fine reduction.

5 Whistle-blowing Procedures for Individuals

5.1 Are there procedures for individuals to report cartel conduct independently of their employer? If so, please specify.

There are no specific whistle-blowing procedures for individuals reporting cartel conduct independent of their employers.

6 Plea Bargaining Arrangements

6.1 Are there any early resolution, settlement or plea bargaining procedures (other than leniency)? Has the competition authorities’ approach to settlements changed in recent years?

There are no specific early resolution, settlement or plea bargaining procedures provided for in the Competition Laws. However, the CPC, in coming to its decision as regards to imposition of penalty, will hear mitigating arguments before deciding the level of penalty.

7 Appeal Process

7.1 What is the appeal process?

The appeal process in respect of a decision of the CPC is to file an administrative action before the Supreme Court. The decision of the Supreme Court is final.

7.2 Does an appeal suspend a company’s requirement to pay the fine?

The filing of an administrative appeal does not automatically suspend the requirement to pay the fine, however, an application can be filed to stay payment pending the outcome of the appeal.

7.3 Does the appeal process allow for the cross-examination of witnesses?

Whilst in theory this is possible, the appeal is an administrative/recourse action and the appeal is largely on points of law or procedure, so cross-examination of witnesses in practice is highly unlikely.

It should be noted that an undertaking must make full disclosure after it has been reminded of its right against self-incrimination. This ensures that if the undertaking fails to comply with the terms of the immunity, the CPC can use any information already submitted.(B) ReductionIf the Programme conditions are not met the undertaking may be eligible to qualify for a fine reduction if it provides information of a significant added value which contributes to the finding of infringement. Further, the applicant must terminate its involvement in the activity being investigated according to the terms and conditions to be set by the CPC. In considering the reduction, the CPC will take account of the extent and continuity of the cooperation provided by the undertaking.Reduction of fine First applicant: 50-70%.Second applicant: 30-50%.Third and subsequent applicants: up to 30%.The Programme contains no specific provisions relating to the protection of current or former employees. However an undertaking may choose to make an application on behalf of its directors, officers, employees or other duly authorised persons. The Competition Laws contain several criminal provisions for specific acts, however the Programme does not in any way interfere with these (or any other) criminal provisions.

4.2 Is there a ‘marker’ system and, if so, what is required to obtain a marker?

The applicant may initially present its case through its legal advisers orally and on a “no names” basis in order to protect anonymity. If the requirements under question 4.1 above are met, then the relevant time is the time of initial contact. If the first applicant fails to meet the requirements as mentioned in question 4.1, then a subsequent application can be considered for immunity. The CPC will grant immunity only to the first applicant to come forward, present evidence and meet the requirements. As far as a reduction in the fine, the marker will be allowed a reduction on a first-come, first-served basis.

4.3 Can applications be made orally (to minimise any subsequent disclosure risks in the context of civil damages follow-on litigation)?

The applicant may initially present its case through its legal advisers orally and on a “no names” basis in order to protect anonymity. However, the applicant must make a full, frank and truthful disclosure of all evidence and information available to it, including all documentary and other records.

4.4 To what extent will a leniency application be treated confidentially and for how long? To what extent will documents provided by leniency applicants be disclosed to private litigants?

Any statement made to the CPC in the context of the Programme, forms part of the file of the CPC. It cannot be used or disclosed for any purpose other than an enforcement action under the Competition Laws. The cooperation of any applicant will be noted in any decision of the CPC so as to justify immunity or reduction of fines. After the decision of the CPC is issued, confidentiality is protected by the Competition Laws, so that the CPC cannot disclose the leniency application to any private litigants.

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8.6 Have there been any successful follow-on or stand alone civil damages claims for cartel conduct? If there have not been many cases decided in court, have there been any substantial out of court settlements?

To date there have been no damages claims for cartel behaviour in the Cyprus courts – indeed damages actions for anti-competitive behaviour have not yet been taken in the Cyprus courts.

9 Miscellaneous

9.1 Please provide brief details of significant recent or imminent statutory or other developments in the field of cartels, leniency and/or cartel damages claims.

The most significant amendment has been the Protection of Competition (Amending) Law, Law 41(I)/2014, which has been enacted to update and strengthen the enforcement powers of the CPC. Otherwise there are no imminent statutory or other developments in the area of cartels, save that cartels, particularly price cartels, remain one of the areas that the CPC wishes to address given that the Cyprus economy, although open, is small. One area that is attracting attention and which may be the subject of review by the CPC, although no announcements have yet been made, is price-fixing amongst the oil companies.

9.2 Please mention any other issues of particular interest in your jurisdiction not covered by the above.

Currently there are no further issues of particular interest that need to be covered beyond what is covered above.

8 Damages Actions

8.1 What are the procedures for civil damages actions for loss suffered as a result of cartel conduct? Is the position different (e.g. easier) for ‘follow on’ actions as opposed to ‘stand alone’ actions?

Any person suffering loss and/or financial damage from any conduct that amounts to an infringement of s.3 and/or s.6 of the Competition Laws and Articles 101 and/or 102 of the TFEU has the right to file action for such damages and/or financial damages and further has a right to apply for an injunction to enjoin such conduct. There is no difference between a “follow on” or “stand alone action”, however, any decision of the CPC as to an infringement creates a rebuttable presumption as to such infringement.

8.2 Do your procedural rules allow for class-action or representative claims?

It is possible to maintain a representative action under Cyprus civil procedure rules.

8.3 What are the applicable limitation periods?

Currently the applicable limitation period is six years from the day that the cause of action arose.

8.4 Does the law recognise a “passing on” defence in civil damages claims?

This defence is not recognised under Cyprus law.

8.5 What are the cost rules for civil damages follow-on claims in cartel cases?

There are no specific damages rules for cartel cases. The normal rules for determining damages apply; the most important of which is that the damage must not be remote.

Keane Vgenopoulou & Associates LLC Cyprus

WWW.ICLG.CO.UK70 ICLG TO: CARTELS & LENIENCY 2016© Published and reproduced with kind permission by Global Legal Group Ltd, London

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Thomas KeaneKeane Vgenopoulou & Associates LLCAtlantis Building, Office 2012nd Floor, 2 Makarios Ave.Mesa Yeitonia, Limassol 4000Cyprus

Tel: +357 2525 7900Fax: +357 2525 2820Email: tkeane@kvlaw.euURL: www.kvlaw.eu

Christina VgenopoulouKeane Vgenopoulou & Associates LLC Atlantis Building, Office 2012nd Floor, 2 Makarios Ave.Mesa Yeitonia, Limassol 4000Cyprus

Tel: +357 2525 7900Fax: +357 2525 2820Email: cvgenopoulou@kvlaw.euURL: www.kvlaw.eu

Thomas, who is one of the two founding partners, has over 20 years of experience in the profession. His areas of practice include all areas of corporate and commercial law but with particular focus on banking, asset finance, corporate finance, project finance (across all sectors), capital markets, M&A, structured products, financial services, EU & Competition and arbitration.

In addition, Thomas provides, particularly in banking, funds, insurance and financial services sectors, compliance and regulatory advice to ensure that such regulated entities comply with their on-going statutory obligations.

Thomas also has experience with drafting legislation and has in the past drafted legislation relating to investment funds for the Central Bank of Cyprus.

He is a regular speaker at international conferences and has published many articles in leading legal periodicals.

Thomas was previously with one of the largest law firms in Cyprus; eight years as a partner.

Professional Qualifications: admitted: Irish Bar, Cyprus Bar.

Academic Qualifications: B.A. (Law) – University of Limerick 1988; LL.M. – University of London 1989; B. L. – Barrister 1992.

Professional Memberships: member of Irish Bar, Member of Cyprus Bar, Member of STEP, Member of ECTA.

Keane Vgenopoulou & Associates LLC is a newly established firm but with extensive competition law experience in Cyprus, the EU and in other jurisdictions, dealing in particular with appearances before the Cyprus Commission for the Protection of Competition and the EU Commission. We advise across all areas of practice with particular emphasis on M&A, Co-operation Agreements, Joint Ventures, Technology & IP licensing, exercise and licensing of IP rights, Franchising, Distribution and Agency arrangements. Due to our experience and expertise, we are alone placed to provide anti-trust advice when advising on corporate transactions across all areas.

Christina is a founding partner of the firm and has over eight years of experience in the profession. Her practice focuses on all areas of corporate and commercial law but she specialises in corporate finance, financial services, trusts, taxation, banking (domestic and international) arbitration and energy. She provides advice to financial institutions regarding their day-to-day operations and specialised projects, with emphasis on transactions where international partners are involved. In the corporate sector, Christina has advised on transactions in a variety of industries. Her experience covers all aspects of corporate and commercial law, from strategy and due diligence to the drafting and negotiation of all related contracts and agreements.

Christina frequently publishes articles in legal periodicals across all areas of her practice but in particular energy, investment funds and taxation.

Christina was a senior associate with one of the largest law firms in Cyprus prior to founding the firm.

Professional Qualifications: admitted: Cyprus Bar.

Academic Qualifications: LLB – University of Kent at Canterbury; LL.M. Commercial and Corporate Law – University of London.

Professional Memberships: member of Cyprus Bar.

Keane Vgenopoulou & Associates LLC Cyprus

59 Tanner Street, London SE1 3PL, United KingdomTel: +44 20 7367 0720 / Fax: +44 20 7407 5255

Email: sales@glgroup.co.uk

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