Articles

New Leniency Guidelines applicable in Belgium since 22 March 2016

New Leniency Guidelines applicable in Belgium since 22 March 2016

New Leniency Guidelines applicable in Belgium since 22 March 2016

04.04.2016 NL law

On 22 March 2016, the new Belgian Leniency Guidelines (the "Guidelines") entered into force. They apply to all leniency applications submitted after that date.

The most important change introduced by the Guidelines consists of practical rules for leniency applications submitted by individuals. Clarification regarding how these rules are implemented was required, particularly since the option for individuals to obtain immunity for ‘whistle blowing’ became part of the Belgian Code of Economic Law in 2013, and in light of potential sanctions against individuals for certain types of competition law infringements.

Individuals are always granted full immunity, regardless of where they rank in the order of applications submitted, provided that they respect the other conditions set out in the Guidelines. This is different from corporate leniency, where only the first applicant can obtain full immunity. The Guidelines also clarify that individuals may apply for leniency alone or together with the undertaking or association of undertakings for whom they work or used to work.

Furthermore, the Guidelines introduce new reduction percentages in relation to partial exemptions. When the Belgian Competition Authority already has information regarding the cartel, it may grant partial reduction to undertakings which submit evidence with a significant value. The fine reduction available to the first partial leniency applicant remains the same, namely between 30% and 50%. The second partial leniency applicant can obtain a reduction between 20% and 40% (previously 10-30%). The following applicants can receive a 10% to 30% reduction, which is the same as in the previous Guidelines.

While the conditions to be respected by the applicants, including the information that they should provide, are still more or less the same as those under the former leniency provisions, the 2016 Guidelines do provide some practical clarifications. These include the confidentiality obligations of a leniency applicant, the language to be used in the application, how to make contact with the Auditor General in order to submit such an application or to obtain information about the availability of an immunity application for the first undertaking, and the possibility to obtain a marker.

The Guidelines are still limited to cartel cases, with the express exclusion of other type of horizontal agreements and of vertical agreements. To the extent that a hub-and-spoke cartel can be qualified as a cartel, it will be covered. A hub-and-spoke cartel is an exchange of information between retailers (competitors) through one or more of their common suppliers. The Belgian Competition Authority has already granted immunity and leniency in a hub-and-spoke cartel case in 2015.

This article was published in the Competition Law Newsletter of April 2016. Other articles in this newsletter:

1. Court of Justice annulled Commission's requests for information in cement cartel case
2.
Initial findings of Commission's e-commerce sector inquiry show widespread use of geo-blocking
3.
ACM fined cold-storage companies and their executives EUR 12.5 million for breaching competition law during merger negotiations
4.
Dutch Trade and Industry Appeals Tribunal confirmed that ACM can use EU-wide turnover in calculating the fines in onion cartel case
5. Belgian Constitutional Court rules that actions for antitrust damages cannot be time-barred before the final infringement decision is rendered

Team

Related news

03.08.2022 EU law
Gotta catch ‘em all? Upward referral of ‘killer acquisitions’ upheld

Short Reads - Companies involved in intended or completed M&A transactions falling below EU and national merger notification thresholds should beware that their deals may still catch the European Commission’s eye. The General Court has upheld the Commission’s decision to accept a national referral request regarding Illumina’s acquisition of Grail: a transaction not triggering any of the notification thresholds within the EEA.

Read more

06.07.2022 NL law
Highest Dutch court: the postman may still ring twice?

Short Reads - The Dutch Minister of Economic Affairs and Climate Policy was wrong to unblock the ACM’s prohibited merger between postal operators PostNL and Sandd on grounds of public interest. According to the Trade and Industry Appeals Tribunal (CBb), the Minister cannot substitute the ACM’s assessment for its own when considering public interest reasons. Since the Minister did do so in this particular case, the CBb annulled the Minister’s merger clearance.

Read more

28.07.2022 NL law
Purely commercial interest also a legitimate interest? Council of State leaves the question unanswered.

Short Reads - On 27 July 2022, the Council of State confirmed that the Dutch Data Protection Authority wrongly imposed a €575,000 fine on VoetbalTV. But the Council did not answer the question whether the AP rightly or wrongly believes that a purely commercial interest cannot be a legitimate interest within the meaning of the General Data Protection Regulation.

Read more

06.07.2022 NL law
Foreign Subsidies Regulation crosses the finish line

Short Reads - On 30 June 2022, the European Parliament and the European Council reached agreement on the final text of the Foreign Subsidies Regulation. Adding to the regulatory burdens, this Regulation creates a notification obligation for companies that receive subsidies from non-EU governments in transactions or public procurement procedures. 

Read more

28.07.2022 NL law
Zuiver commercieel belang ook gerechtvaardigd belang: Raad van State laat zich er niet over uit

Short Reads - Op 27 juli 2022 heeft de Raad van State bevestigd dat de Autoriteit Persoonsgegevens onterecht een boete van € 575.000 aan VoetbalTV heeft opgelegd. De hoop bestond dat de Afdeling antwoord zou geven op de vraag of de AP terecht of onterecht meent dat een zuiver commercieel belang géén gerechtvaardigd belang kan zijn in de zin van de Algemene Verordening Gegevensbescherming. Het antwoord op deze vraag blijft echter uit.  

Read more

06.07.2022 NL law
Take note(s): Qualcomm’s EUR 1 billion dominance abuse fine quashed

Short Reads - The General Court annulled the Commission’s EUR 1 billion fine imposed on Qualcomm for abuse of dominance on the LTE chipsets market. In addition to finding fault with the Commission’s foreclosure analysis of Qualcomm’s alleged exclusivity payments, the General Court found that the Commission’s procedural irregularities alone would have sufficed to set the Commission’s decision aside.

Read more