On 3 June 2021, the European Court of Justice (“ECJ”) in case C-563/19 P Recylex v Commission dismissed Recylex’ appeal both to adjust its ranking in the leniency process and to receive partial immunity for parts of its participation in the Car Battery Recycling cartel.  The judgment, on appeal against the judgment of the General Court (“GC”) of 23 May 2019, provides guidance to companies considering a leniency application when there is already an ongoing European Commission (“Commission”) investigation.

Applying for leniency enables cartel participants to obtain reduced or annulled fines.  The 2006 Commission Notice on Immunity from fines and reduction of fines in cartel cases  (“Leniency Notice”) sets out the key principles:

  • the first company providing the Commission with sufficient evidence for an investigation will be granted full immunity;
  • subsequent applicants can receive fine reductions of 30-50%, 20-30% or 20% depending on the timing of their submission; and
  • companies can receive partial immunity for providing the Commission with details expanding the scope of the infringement.


In 2017, the Commission fined four companies for their participation in the Car Battery Recycling cartel.  Each of the companies applied for leniency, with Recylex having submitted its application within a month after the Commission dawn raid.  As the third leniency applicant, Recylex’ fine was reduced by 30%.

On appeal to the GC, Recylex submitted the following grounds of appeal:

  • It had provided information regarding additional aspects of the cartel which gave the Commission a more thorough understanding of the timeline of the cartel. The GC had rejected the appeal on this point since the Commission was already aware of the meeting regarding which Recylex had submitted information, and the details had merely strengthened the Commission’s case.
  • Recylex argued that the first leniency applicant Eco-Bat had not cooperated adequately with the Commission investigation, and should have been removed from the leniency ranking. According to Recylex, it should therefore take Eco-Bat’s position in the ranking and qualify for a higher 30-50% reduction in fine.


Regarding the scope of the infringement and partial immunity, the ECJ notes that the Leniency Notice aims to dismantle cartels quickly and efficiently; it seeks to encourage companies to cooperate with the Commission.  Partial immunity exists to motivate infringing parties to quickly share incriminating evidence with the reassurance that such disclosure will not result in a larger fine.  Granting merely a fine reduction would incentivise companies to weigh whether such reduction would compensate for the higher basic amount that would result from the increased gravity of the infringement.

Any additional information expanding the infringement’s duration, geographic or material scope qualifies an applicant for partial immunity.  The ECJ finds that Recylex had merely provided information that strengthened a pre-existing body of evidence, rather than expanded the scope of the infringement.  It would not have been appropriate therefore to grant partial immunity, because the information provided did not increase the gravity of the infringement and no compensation for an increased basic amount of the fine was necessary.

Regarding the ranking of leniency applicants, and in line with previous case-law, the ECJ held that Eco-Bat not meeting its cooperation requirements would not qualify Recylex for a higher position in the leniency ranking.  Such an approach is neither supported by the wording of the Leniency Notice nor would it be consistent with the objective of the Leniency Notice which is to create a ‘climate of uncertainty within cartels’.


The ECJ confirms that, barring exceptional circumstances, full immunity is not available to companies who are already under investigation by the Commission.  Their leniency application may however result in a substantial reduction of the fine, with the percentage of the reduction being determined by the ranking and the timing of their application.

The judgment confirms that in order to obtain partial immunity the leniency application will have to provide the Commission with evidence that clearly and significantly expands the scope of the infringement.  Providing evidence strengthening information that the Commission already has will only allow for a higher percentage of fine reduction, but not for partial immunity.

Further, the judgment confirms that the leniency ranking is set and there is little scope for companies to strategically withhold leniency applications on account of potential subsequent changes in the ranking.  Any failure to comply with cooperation requirements by a leniency applicant would not qualify the subsequent applicant to take a higher position in the ranking.

Photo of Johan Ysewyn Johan Ysewyn

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner…

Johan Ysewyn is widely respected as a highly skilled European competition lawyer, advising on complex competition issues, including on merger control, anti-cartel enforcement, monopolisation cases and other conduct investigations. He acts as Co-Head of the firm’s Global Competition group and as Managing Partner of the Brussels office.

Clients turn to Johan when they need cutting-edge competition and regulatory advice. He has been advising some of the world’s leading companies for over 30 years on their most complex competition issues. Johan is “an exceptional lawyer who is solution-oriented, has a remarkable ability to rapidly understand our business and has excellent reactivity.” (Chambers Global) Johan “attracts considerable praise for his reliable practice, as well as his great energy and insight into cartel proceedings.” (Who’s Who Legal)

Johan represents clients from around the world in dealings with competition authorities as well as in court litigation. He has in-depth knowledge of regulatory procedures and best practices as well as longstanding relationships with key regulators, in particular at the European Commission. He has also an active advisory practice covering a range of areas of interest to corporates, including the interplay between ESG goals and competition law, the impact of competition law enforcement on digital markets and broad strategic compliance issues.

Johan’s experience spans many industry sectors, with recent experience in telecoms and information technology, media, healthcare, consumer goods, retail, energy and transport. He has advised on several of the most major merger investigations in recent years. In addition, he has represented clients in many conduct investigations.

Johan’s practice also has a strong focus on global and European cartel investigations. He has acted for the immunity applicants in the bitumen and marine hose cartels, and acted for defendants in alleged cartels in financial services, consumer goods, pharmaceuticals, chemicals, consumer electronics and price benchmarking in the oil sector. He has acted for the European Payments Council in the first European Commission investigation into standardisation agreements in the e-payments sector. Johan has written and lectured extensively on international cartel and leniency-related issues. He co-authors the loose-leaf European Cartel Digest and lectures on cartel law and economics at the Brussels School of Competition.

Johan is also one of the leading experts on EU State aid issues, working both for beneficiaries and governments. He has advised a number of leading banks and governments, as well as represented major European airlines. From the cases that can be publicly disclosed, he has been involved in the Fortis, KBC, Dexia, Arco, Citadele, airBaltic and Riga Airport State aid cases.