Clifford Chance

The increased protection of employees who report antitrust infringements may impact companies' ability to identify antitrust breaches and successfully apply for immunity from fines.

The EU Whistleblower Protection Directive, which EU Member States should have implemented by 17 December 2021, seeks to encourage the reporting of breaches of EU law, including violations of antitrust rules.

The Directive aims at creating internal reporting channels within each company of a certain size, as well as setting up channels for employees to report violations directly to national authorities. Companies will be required to inform employees of the possibility to report infringements both internally and externally. Employees who decide to make reports internally or externally will benefit from protection against retaliation.

Depending on how Member States implement the Directive and how effective a
company's internal reporting channels are, the Directive could affect the companies' ability to identify antitrust breaches and successfully apply for leniency where relevant.

First, in certain circumstances, the company may be required to obtain the whistleblower's consent before sharing an internal report with other companies of the group, which may hinder a group's ability to investigate the potential infringement effectively. Second, successfully applying for leniency may become more difficult if individuals increasingly make reports of suspected violations externally instead of, or in addition to, internally. Obtaining immunity from fines or a reduction of the fine generally requires the company that discloses its participation in an infringement to provide the authority with key evidence that was not in the authority's possession. If the authority has already received evidence of the infringement from a whistleblower, leniency may no longer be available to the company.

To safeguard their ability to investigate potential antitrust breaches effectively and submit leniency applications where needed, companies should foster an environment that favours internal communication and reporting. If employees know that their reports are taken seriously and do not expose them to retaliatory measures, they are more likely to report infringements, including antirust breaches, internally, rather than to an external authority or the public, and cooperate with the internal investigations.