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.
