Competition and the use of markers in leniency programmes

Many competition authorities rely on leniency policies to detect, investigate and prosecute hard-core cartels. To encourage leniency applicants to come forward as early as possible, many authorities have adopted “marker” systems.

Marker systems allow a prospective leniency applicant to approach the authority with some initial information about their participation in a cartel in exchange for a commitment by the authority to hold the applicants ‘place in line’ for amnesty/leniency (i.e., grant a “marker”), for a finite period of time, while the applicant gathers additional information to complete its amnesty/leniency application.

Markers can therefore be seen as a mechanism to spur the race for leniency by reducing the initial barriers to entry into the leniency programme and by providing transparency and predictability to parties regarding their leniency status (first-in, second-in, etc.). At the same time, commentators have noted that there are differences in marker policies across jurisdictions with respect to their availability, the information requirements, timing, and scope, which may dis-incentivise companies engaged in international hard-core cartels from using the leniency programmes.
‌
For the first time at the OECD, a roundtable on the "Use of Markers in Leniency Programmes" took place in December 2014. It has been an open discussion on the purpose of marker systems, the benefits of such systems for enforcement agencies and for leniency applicants, and their principal components.