NAMIBIAN COMPETITION COMMISSION PUBLISHES CORPORATE LENIENCY PROGRAMME

Wednesday, October 17, 2018
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The Namibian Competition Commission (NaCC) has adopted a Corporate Leniency Programme (CLP), effective from 12 October 2018, allowing for the lenient treatment of self-confessing cartel members in certain circumstances.

Leniency programmes in other jurisdictions have been regarded as instrumental to the success of competition regulators in detecting cartel conduct. The NaCC joins at least 10 other African jurisdictions with corporate leniency policies in place. 

Key aspects of the NaCC’s CLP are the following:

  • Leniency: Leniency in the context of the CLP means “…that the NaCC would, in exercise of its discretion, not subject the successful CLP applicant to adjudication before the High Court for its involvement in the cartel activity”. However, the CLP specifically notes that the granting of leniency will not protect the applicant from criminal or civil liability as a result of participating in the cartel conduct.
  • Relevant candidate: Leniency from prosecution will be available to the first applicant (an undertaking or natural person) to confess to the NaCC about its involvement in a hard-core cartel in Namibia, or having an effect in Namibia. While other cartel members wishing to confess to the NaCC will not be eligible for leniency in terms of the CLP, the NaCC could decide to deal with them favourably outside the CLP, e.g. by consent agreements or reduction in fines.
  • Relevant conduct: The CLP is only available in respect of price-fixing, market division, collusive tendering, and the limitation or control of production, market outlets, market access, technical development or investment.  The CLP is aimed at cartel activity which the NaCC is not aware of; or which the NaCC is aware of but in relation to which it has insufficient information, and where no investigation has been initiated; or in respect of pending investigations and investigations already initiated by the NaCC but, where the NaCC, having assessed the matter, considers that it has insufficient evidence to prosecute the undertakings involved.
  • Marker: A prospective leniency applicant may apply for a “marker” to reserve its place in the queue in order to make enquiries or prepare the leniency application.
  • The requirements for a successful leniency application are:
    • Complete and truthful disclosure of all evidence, information and documents in the possession or under the control of the applicant relating to any cartel activity;
    • Full and expeditious co-operation with the NaCC concerning the reported cartel activity until the NaCC‘s investigations are finalised and any subsequent proceedings in the High Court or Supreme Court are completed;
    • Ceasing the cartel activity as directed by the NaCC;
    • Not alerting other cartel members or other third parties as to the leniency application;
    • Not destroying, falsifying or concealing information, evidence and documents relevant to any cartel activity; and
    • Not making any misrepresentations or acting dishonestly concerning the material facts of any cartel activity.

For any questions relating to the NaCC's CLP, please get in touch with your usual contact in our Competition Practice.