On 1 March 2016, the board of the Belgian Competition Authority (“BCA”) adopted new guidelines concerning the leniency regime under Belgian competition law. These new leniency guidelines reflect a number of developments that have taken place since the adoption of the 2007 guidelines.
The BCA had first launched a public consultation, prior to the adoption of new guidelines, in order to receive comments from interested parties (See, VBB on Competition Law, Volume 2015, No. 11, p. 6, available at www.vbb.com).
The main changes brought about by the new guidelines concern three points.
First, practical rules for leniency applications by individuals have been set out. The possibility for individuals to submit leniency applications had been introduced by the legislator in 2013, in conjunction with the possibility for the BCA to prosecute individuals for their participation in cartels. However, the practicalities of leniency applications by individuals, as well as their relation to leniency applications submitted by undertakings, required further clarification.
Second, the changes made to the European Model Leniency Programme (“EMLP”) at the end of 2012 have been incorporated into the new guidelines. The goal of the EMLP is to avoid discrepancies between the leniency programmes of the different EU Member States, which might be counterproductive in the fight against cartels. The new Belgian guidelines are intended to align leniency applications to the BCA with the harmonised rules of the EMLP.
An important change resulting from the alignment with the EMLP is the fact that, in cases involving more than three Member States, all leniency applicants applying to the European Commission will be given the possibility to submit a summary leniency application to the BCA. Under the 2007 guidelines, such summary applications were reserved for the immunity applicant.
Finally, the practical and procedural terms of leniency applications are further clarified in the new guidelines. These changes are based on the experience which the BCA has gained since the adoption of the 2007 guidelines. In particular, the obligations of undertakings applying for leniency are outlined more elaborately. In addition, the rules on confidentiality are reinforced in the new guidelines.
The new guidelines will enter into force on the day of their publication in the Belgian Official Journal (Belgisch Staatsblad/Moniteur belge).
