Cap. 379 чл. 12BSettlement procedure.

(1) The Director General together with any undertaking and, or association of undertakings shall have the right to demand, either during the course of the investigation before the

Office or at any stage after the closure of the said investigation, that the investigation or the proceedings before the Court, as the case may be, are terminated by mutual consent between the Director General and the undertaking and, or the association of undertakings concerned by means of the settlement procedure, which includes the finding of an infringement in terms of article 13(1) and the imposition of a penalty by the Court in terms of article 21(1) as provided for in this article.

(2) The termination of the investigation before the Office or the termination of proceedings before the Court by means of settlement, shall be granted by virtue of a judgement delivered by the Court upon the demand made jointly by the Director General and any undertaking, and, or association of undertakings concerned, where the Director General and the undertaking, and, or association of undertakings concerned agree that the investigation before the Office or the proceedings before the Court, as the case may be, are terminated by means of the settlement procedure, which includes the finding of an infringement in terms of article 13(1) and the imposition of a penalty in terms of article 21(1) by the said Court:

Provided that not all undertakings and or, association of undertakings which are under investigation or which are subject to proceedings before the Court must agree to submit to a settlement procedure.

(3) The joint demand mentioned in sub-article (2) shall be made by means of a joint application filed in Court: requirements of sub-article (7) have all been satisfied, the Court shall appoint a sitting to confirm that the undertaking, and, or association of undertakings concerned are not contesting the contents of the settlement submissions and that all the parties concerned express their unconditional willingness to terminate the investigation before the Office or the proceedings before the Court by means of the settlement procedure, after which sitting, the Court shall pronounce judgement on the basis of the joint application.

(4) In the course of an investigation concerning an alleged infringement of articles 5 and, or 9 of the Act and, or an alleged infringement of Articles 101 and, or 102 of the TFEU, the Director General may prior to the filing of a sworn application in Court pursuant to article 12A of the Act, if he deems it appropriate for the expeditious and efficient conclusion of the investigation, invite all, some or one of the undertakings concerned and, or the association of undertakings concerned to indicate in writing, within the time limit set by him, whether they are prepared to engage in settlement discussions with a view to possibly introducing settlement submissions:

Provided that, the Director General shall not be obliged to take into account the replies received after the expiry of that time limit:

Provided further that, at any time during the course of an investigation, any undertaking and, or association of undertakings concerned may also request to engage in settlement discussions with the Director General:

Provided further that, the decision regarding the initiation of the settlement discussions falls within the exclusive competence of the Director General.

(5) Should the Director General ascertain that sufficient progress in the settlement discussions have taken place, the Director General shall invite the undertaking and, or association of undertakings concerned to introduce their settlement submissions before the Office within a time limit as set by the Director General with a view to conclude the settlement procedure:

Provided, that before the Director General sets a time limit to introduce their settlement submissions, the undertaking and, or association of undertakings concerned may be informed of the main elements of the suspected infringement, consisting of:

(i) the evidence found; Provided further that before the Director General sets a time limit for the undertaking and, or association of undertakings to introduce their settlement submissions, the undertaking and, or association of undertakings concerned may have limited access to the file of the investigation concerning their case which is granted only to the extent that the Director General deems reasonable in view of the objectives of the settlement procedure. If access to the file is granted, the Director General shall provide partial access to the case file by providing non-confidential versions of any specified accessible document listed in the case file at that point in time:

Provided further that before the Director General sets a time limit for the undertaking and, or association of undertakings to introduce their settlement submissions, the undertaking and, or association of undertakings concerned shall be given the opportunity to present their views on the alleged infringement and make observations:

Provided further, that if the undertaking and, or association of undertakings fails to submit the settlement submissions within the time limit set by the Director General, it shall be considered that the undertaking, and, or association of undertakings concerned has withdrawn from the settlement procedure.

(6) (i) The documents and the information exchanged between the Director General and the undertaking and, or association of undertakings concerned during the settlement procedure are confidential:

Provided that the information given pursuant to sub-article (5) shall be confidential in regard to other parties subject to the relevant investigation before the Office, save where the Director General has given a prior explicit authorization for disclosure.

(ii) Settlement submissions shall only be accessible to the undertakings and, or the association of undertakings which are subject to the relevant investigation before the Office or are subject to relevant proceedings before the Court instituted in terms of the Act or are subject to any relevant proceedings before the Court of Appeal and only for the purposes of exercising their rights of defence.

(iii) The party who has obtained access to the file during investigations before the Office or proceedings before the Court or the Court of Appeal may only use information taken from settlement submissions submitted in terms of the Act where

(a) the allocation between cartel participants of a penalty imposed jointly and severally on them by the Court; or

(b) the appeal before the Court of Appeal of a judgement by the Court finding an infringement of articles 5 and, or 9 of the Act or Articles 101 and, or 102 of the TFEU.

(iv) The parties granted access to settlement submissions together with their legal counsels who are granted access on their behalf, cannot make any copy by mechanical or electronic means of any information in the settlement submissions to which access is being granted.

(7) The settlement submissions submitted before the Office pursuant to sub-article (5) shall be produced together with the joint application and shall contain a voluntary statement by the undertaking and, or association of undertakings concerned containing the following information:

(a) a statement by the undertaking and, or association of undertakings concerned, clearly and unequivocally admitting their participation in the infringement as well as their liability regarding articles 5 and, or 9 of the Act and, or Articles 101 and, or 102 of the TFEU;

(b) a factual and brief description of the conduct of the undertaking and, or the association of undertakings concerned, the objective of the conduct and the way in which it was carried out, its duration and the extent in which the undertaking and, or association of undertakings were involved;

(c) a statement of the undertaking and, or association of undertakings concerned declaring that they accept the amount of the penalty that is being requested by the Director General in the joint application;

(d) a statement of the undertaking and, or association of undertakings concerned to the effect that they were sufficiently informed by the Director General regarding the main elements of the suspected infringement contained in sub-article (5) and a declaration of the undertaking and, or association of undertakings that they were given sufficient opportunity to be heard and to make their views known to the Director General;

(e) a statement of the undertaking and, or association of undertakings concerned that they will waive their right to of undertakings concerned containing its waiver of its right to appeal or challenge in any way the settlement procedure, the investigation related to the settlement procedure, or the judgement of the Court including the penalty; and also waiver of any action or claim deriving from the same settlement procedure and, or related to the investigation related to the settlement procedure and, or related to the judgement of the Court and, or the penalty;

(g) a statement of the undertaking and, or association of undertakings concerned that it agrees with the contents of the settlement submissions and that it agrees with the facts together with the legal assessment of the facts of the infringement as established by the Director General in the joint application:

Provided that together with the settlement submissions the joint application shall also include a statement by the Director General:

(i) agreeing with the settlement submissions of the undertaking and, or association of undertakings concerned;

(ii) specifying the amount of the penalty he is requesting to be imposed on the undertaking and, or association of undertakings concerned; and

(iii) requesting the Court to deliver a judgement to terminate proceedings by means of settlement based on the settlement submissions of the undertaking and, or association of undertakings concerned contained in the joint application and to impose the amount of the penalty as requested by the Director General;

(h) a statement by the undertaking and, or association of undertakings concerned that it agrees that a joint application is filed in Court together with the Director General to terminate the investigation or the proceedings, as the case may be, by means of the settlement procedure, and to request the Court to deliver a judgement on the basis of the joint application:

Provided that the joint application shall also include the following information by the Director General:

(i) a short description of the facts of Director General is requesting to be imposed on the undertaking and, or association of undertakings concerned;

(8) Settlement discussions may also be proposed jointly by the parties at a later stage, when a sworn application would have already been filed by the Director General before the Court:

Provided that the Court may adjourn two sittings so that within such time the parties would be able to attempt to settle the dispute by filing a joint application as referred to in sub-article (3):

Provided further that if the Director General and, or the undertaking and, or association of undertakings concerned fail to file a joint application within the adjourned two sittings allocated by the Court, proceedings against the undertaking, and, or association of undertakings concerned shall continue according to the stage where the proceedings before the Court had arrived.

(9) If the undertaking, and, or association of undertakings concerned agree to terminate the investigation before the Office or the proceedings before the Court by means of settlement, by filing together with the Director General the joint application, the Director General shall reward the undertaking and, or association of undertakings for the settlement, by reducing the penalty which would otherwise have been requested by the Director General to be imposed by the Court in terms of article 21(1) of the Act by ten to thirty-five per centum (10-35%).

(10) The Director General may decide at his own discretion at any time during the settlement discussions to discontinue settlement procedure altogether in a specific case or with respect to one or more of the parties involved, if, for instance:

(a) procedural efficiencies are not likely to be achieved; or

(b) the settlement submissions do not contain all the requirements mentioned in sub-article (7); or

(c) the undertaking and, or association of undertakings do not have a sincere intention of settling the case or do not cooperate or have breached the confidentiality obligation by revealing to any third party the content of the settlement meetings held with the Director General or the contents of the documents to which access has been granted: the Director General, as the case may be, withdraw or discontinue the settlement procedure as provided for in sub-articles in (5) and (8), the case shall proceed according to the stage where the investigation or proceedings have arrived.

(11) If the settlement procedure is discontinued either by the Director General or by the undertaking and, or association of undertakings concerned during the investigation before the Office or during Court proceedings while attempting to settle the dispute, any information and document provided by the undertaking, and, or association of undertakings concerned during the settlement procedure cannot be used as evidence to establish an infringement of articles 5, and, or 9 of the Act, and, or an infringement of Articles 101 and, or 102 of the TFEU against the undertaking and, or association of undertakings concerned or other parties to the investigation before any court of law:

Provided that the foregoing provision of this sub-article is without prejudice to sub-regulation (4)(c) of regulation 6 of the Competition Law Infringements (Actions for Damages) Regulations in the Schedule:

Provided further that documents and, or information which were already in the possession of the Office prior to being presented by the undertaking and, or association of undertakings concerned and any information which can be requested by the Office pursuant to article 12 of the Act, can be used as evidence by the Office and before any court of law to establish an infringement of articles 5, and, or 9 of the Act, and, or an infringement of Articles 101 and, or 102 of the TFEU against the undertaking, and, or association of undertakings concerned or against other parties to the investigation.