On 22 March 2016, the new leniency guidelines of the Belgian Competition Authority (BCA), came into force. The new guidelines reflect changes to the Model Leniency Program (MLP), which the European Competition Network (ECN) adopted in 2012, and the entry into force of the new Belgian Competition Act in 2013.
What has changed?
One of the novelties of the 2013 Belgian Competition Act is that the BCA can penalise private individuals. The Act also permits private individuals to apply for leniency. The first change in the guidelines therefore relates to leniency applications from private individuals. The guidelines state that private individuals will always be eligible for immunity, regardless of the order in which the request is ranked. There are two possible ways in which a private individual can submit a request for immunity to the BCA. The request can either be submitted simultaneously with the leniency request submitted by the undertaking or association of undertakings concerned, or it can be submitted individually on the individual’s own initiative. Where the request is submitted individually, the undertakings or associations of undertakings concerned are not prevented from submitting a request for leniency and can still benefit from immunity.
Another novelty concerns the rules applying to leniency applications that undertakings or associations of undertakings may want to initiate during an on-the-spot investigation by the BCA. The rules are inspired by the French leniency guidelines. Under the guidelines, a leniency application will be deemed to have been made at a meeting between the applicant and the competition prosecutor general. Meetings take place upon prior appointment by email or telephone. No meetings take place when a dawn raid is still going on. However, when there are several requests for a meeting, the date that the appointment has been requested will determine the ranking of the application, and the meetings will be organized following that order. The time pressure therefore remains. The guidelines also provide that the BCA will in principle issue a press release when inspections have taken place. This information should put all undertakings and associations of undertakings on the same footing, whether or not they have been subject to an inspection.
A final addition to the new Belgian leniency guidelines worth mentioning was inspired by the 2012 version of the MLP. As in the MLP, in cases involving more than three Member States, all leniency applicants that apply to the Commission are also able to submit summary leniency applications to the relevant national competition authorities. Under the previous Belgian guidelines, only the immunity applicant was entitled to make summary applications.
One aspect that has not been changed is that the new guidelines still apply only to cartels. The 2013 Belgian Competition Act provides, however, for the possibility of leniency for all agreements that restrict competition, including also vertical agreements and horizontal restrictive agreements that are not cartels. It is therefore unclear how leniency will work in practice when a possible application relates to restrictive agreements outside the cartel area. By not extending the application of the new guidelines beyond cartels, the BCA seems to have wasted a great opportunity to create more uniformity in the application of the procedural rules on leniency in Belgium.
The new guidelines are to be welcomed, as they largely bring the BCA’s leniency policy into line with the 2013 Belgian Competition Act and the revised MLP.
However, it is regrettable that some aspects of the previous guidelines which were in need of amendment have not been the subject of proper review. The fact that the guidelines only apply to some of the practices that can benefit from leniency under the Belgian Competition Act is unhelpful and creates uncertainty for undertakings or associations of undertakings which may opt for leniency for practices that are not covered by the guidelines.
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