On 26 August 2014, the Board of the Belgian Competition Authority ("BCA") decided to replace its Communication of 19 December 2011 on the calculation of fines with new fining guidelines. These guidelines serve as a basis for the calculation of the amount of the fines imposed on co
his new approach mpanies found guilty of anticompetitive practices. Although they are not strictly binding on the BCA, they offer a certain level of legal certainty for the companies concerned as the BCA cannot derogate from them without stating reasons.
Essentially, the new Belgian fining guidelines state that the BCA will, in principle, use the Guidelines on the method of setting fines adopted by the European Commission in 2006 as a basis for determining the level of the fines. According to the BCA's press release, "[t]his new approach must be seen in a context of harmonization of sanctions for infringement of the competition rules within the European Union". Indeed, the same rules will apply to all companies responsible for any anticompetitive behaviour in Belgium, regardless of whether these companies are investigated by the European Commission or by the BCA.
However, the BCA decided to make a few derogations from the EU practice, mostly to adjust the EU fining guidelines to the Belgian context. In particular, the turnover to be taken into account in the calculation of the fine will be the turnover to which the infringement directly or indirectly relates and which is realised in Belgium by the undertakings concerned. The BCA also clarifies the definition of recidivism, which must be understood as referring to any identical or similar infringement ruled upon by the European Commission or the national authority of any EU Member State sharing borders with Belgium, including the UK. There will, however, be no recidivism if a group of companies guilty of an infringement of competition law has acquired a subsidiary which committed an identical or similar infringement prior to the acquisition.
The BCA also specifies that, when a company which applied for leniency also entered into a settlement procedure, the amount of the fine is first reduced pursuant to the Belgian leniency notice, and the resulting fine is then decreased in accordance with Article IV.54 of the Code of Economic Law applicable to settlements.
In practice, the new guidelines will sanction infringements of a long duration more heavily than under the current guidelines. They will also iron out some remaining differences between the Belgian and the EU methods as regards relevant circumstances to be taken into account, notably the existence of a compliance programme.
The new Belgian fining guidelines will enter into force on 1 November 2014 and will apply to all cases in which a draft decision is submitted to the Competition College after that date as well as to all settlement cases in which the College of Competition Prosecutors has already communicated the applicable range of fines on that date (provided the case does in fact lead to a settlement decision).