Belgian competition law: Competition Council adopts new fining guidelines

In a press release issued on 6 January 2012, the Belgian Competition Council announced the adoption on 19 December 2011 of new Guidelines regarding the calculation of fines for EU and Belgian competition law infringements. The Guidelines describe the methodology that the Competition Council will follow when calculating fines for such competition law infringements. According to the press release issued by the Competition Council, the aim of the new Guidelines is to create transparency for the benefit of undertakings and associations of undertakings subject to an investigation by the Belgian competition authority.

The Guidelines build upon the practice of the Competition Council as well as upon developments at EU level and in other EU Member States. In general, the Guidelines are consistent with the latest Fining Guidelines of the European Commission. Like at EU level, the main factors taken into account for the calculation of the fines are the gravity and the duration of the infringement. In principle, the basis for the calculation of the fines will be the value of the undertaking's sales of products or services related to the infringement during the last full year of the infringement. The so-called "gravity amount" will be a portion of this value of sales, i.e. between 0% and 15% for minor infringements and between 15% and 30% for serious and very serious infringements (e.g., hardcore cartels, hub & spoke cartels, vertical hardcore restrictions such as resale price maintenance practices, exclusionary or damaging abuses of a dominant position, etc.). This "gravity amount" will then be increased in view of the duration of the infringement. Importantly, while the EU Guidelines provide that the amount determined on the basis of the value of sales is multiplied by the number of years of participation in the infringement, the Belgian Guidelines provide that the gravity amount will be increased by 10% to 30% per year only. Fines might then be increased or decreased taking into account possible aggravating and mitigating circumstances. The maximum level of fine, as provided for in the Belgian Competition Act, is set at 10% of the total turnover of the undertaking. Possible reduction under the Belgian competition authority's leniency programme will then be applied.

It is to be noted that, unlike the EU Guidelines, the Belgian Guidelines do not provide for a possible additional "entry fee" (but this is actually compensated by the fact that the gravity amount is increased by 10% to 30% on account of duration as from the first year of the infringement). Furthermore, the Belgian Guidelines do not explicitly refer to the need for the undertaking to show the existence of a "specific social and economic context" in order for the competition authority to take account of the undertaking's poor financial situation (i.e. inability to pay).

The new Fining Guidelines were published in the Belgian Official Journal (Moniteur Belge/Belgisch Staatsblad) on 18 January 2012 and entered into force on the same day. They will be applied in all cases where a hearing had not taken place before 18 January 2012.