The Belgian Competition Authority ("BCA") has released new guidelines on its leniency program for cartel agreements ("Guidelines"), which entered into force on March 22, 2016. The leniency program, which exists in some form in most other European jurisdictions and the U.S. as well, targets secret cartels among competitors by offering incentives, such as total immunity or substantial reductions of the fines, to cartel whistleblowers.
The new Guidelines' most notable development concerns the new rules applicable to individuals seeking Belgium antitrust immunity. Individuals can seek immunity simultaneous to the leniency request of their employers. Individuals can also seek immunity separately. The possibility for individuals to apply either alongside or independently of companies may be a source of conflict and raises issues of leniency ranking and procedure. As discussed below, the Guidelines address some, but not all of these concerns.
The Guidelines confirm that individuals' applications for leniency will be considered separately from companies' for the purpose of the ranking of leniency applications, which is important in calculating the applicable discount. Unlike companies, individuals can qualify for immunity notwithstanding of their application ranking. The cooperation duty imposed on individuals is also lighter than for companies, in that it suffices for an individual only to contribute to proving the existence of the cartel, either by providing information not yet in the BCA's possession or by admitting to the existence of a cartel-related illegal practice.
The Guidelines also describe the whistleblowing process:
- Before submitting the leniency application, companies can inquire, on an anonymous basis, whether full immunity is still available. But ranking information is not available. This means that the applicant can only know if it could be first in line.
- When seeking leniency, companies or individuals must request a meeting with the General Auditor, where they must provide basic information such as the name and address of the undertaking, the identity of the other cartel participants, the products and the geographic markets involved, the nature of the cartel, and its estimated duration. The date of this introductory meeting will determine the ranking of the leniency applicant. If the information to be submitted requires more time to gather and provide, the undertaking can also obtain a "marker" which temporarily freezes the rank of the applicant.
- The Guidelines confirm the ability to make oral leniency statements, which offer better protection against potential subsequent discovery orders in follow-on damage claims.
- All applicants submitting a leniency application to the European Commission, while also considering the possibility that the BCA may start proceedings, can use a simplified application to the BCA.
- The Guidelines also ring-fence the disclosure of the leniency applications and confirm that the BCA does not intend to transmit leniency statements to courts for damage actions.
An important omission in the Guidelines is that they do not cover all practices qualifying for leniency under Belgian Code of Economic Law. The Guidelines are limited to cartels, defined in the Guidelines as price fixing, market/client sharing, output limitation, import/export restrictions and collective boycotts. Under Belgian Code of Economic Law, leniency is also available for other types of restrictive practices, such as vertical restraints. This results in unnecessary uncertainty under the Guidelines, which could have been easily avoided by aligning the Guidelines' scope with the scope of the leniency program under the law.
The Guidelines nonetheless bring welcome clarifications and greater coherence to the application of the leniency program and could well trigger a surge of leniency applications from individuals or undertakings.