On 25 May 2020, the Belgian Competition Authority (“BCA”) issued a press release announcing the update of its leniency guidelines (effective on 22 May 2020) and the calculation of fines (effective on 25 May 2020). On the same day, the BCA also released a communication on the informal views of the President of the BCA. The new guidelines and the communication aim to bring the existing guidelines and the communication into line with the law of 2 May 2019 (French and Dutch version on this link) incorporated in the new book IV of the Code of economic law. The changes are only minor and have been made for the sake of consistency.
The leniency guidelines
The Belgian Competition Authority has updated the guidelines on “leniency”, a procedure which in cases of extremely serious infringements of competition law allows the request of total or partial exemption from fines by the first participant companies to report the violation to the BCA. These guidelines enumerate the conditions and modalities to be respected in order to be able to benefit from a total or partial exemption from fines, or from immunity from prosecution in cartel cases, both for natural and legal persons.
Competition law, both at Belgian and European level (article IV.1 CDE and article 101 TFEU), prohibits cartels, in particular when their object is price fixing, production limitation and contract award, and other anti-competitive practices. The fine imposed by BCA on the company concerned can be up to 10% of its worldwide turnover. In addition, natural persons who have participated in certain types of cartels on behalf of the company concerned may also be fined up to 10 000 EUR.
The 2007 leniency guidelines were last amended in 2016. The main change was the introduction of immunity from prosecution for natural persons. Since 2013, the BCA has been able to fine a natural person for participating in a cartel on behalf of the company. The previous guidelines only provided for a reduction in fines for businesses.
The current amendment does not make any major changes to the guidelines and only aligns them with the law of 2 May 2020 amending the Code of economic law (on this subject, see the communication from the BCA).
Guidelines on the method of setting fines and the communication on the informal opinions of the President of the BCA
As with the leniency guidelines, the BCA has updated its guidelines for the setting of fines.
The purpose of these guidelines on the setting of fines is to improve transparency and legal certainty for companies under investigation, with regard to the possible level of the fine that may be imposed.
In calculating fines for cartels, the BCA is in principle guided, by the European Commission Guidelines on the method of setting fines, with the exception, inter alia, of the turnover to be taken into account, where only the turnover achieved by the companies concerned in Belgium is taken into account.
The BCA has also updated the communication on the informal opinions of the President of the BCA, which provides guidance on the criteria for an informal perspective and the procedure to follow.
All changes made relate to non-essential elements and only align the BCA’s policy with the law of 2 May 2019.
Annabelle Lepièce, Partner, Brussels
Eléonore Mertens de Wilmars, Junior Associate, Brussels