On 4 April 2008, the Belgian Competition Council found that Bayer, Ferro/Solutia and Lonza participated in a cartel in the Belgian market for Butyl Benzyl Phthalate (BBP), which is a chemical product mostly used as a plasticizer for PVC and which has been classified as toxic by the European Chemical Bureau. For this reason, its use has declined rapidly in the past decade. The Council concluded that participants conspired to fix prices of BBP, allocate customers and market shares, and exchange commercially sensitive information over a period of approximately 8 years.
The Council initiated its investigation following the leniency application of Bayer, which was submitted in July 2004. The Council raided the premises of the companies concerned in October 2004. As Bayer cooperated fully, on a continuous basis and expeditiously from the time it submitted its application, the Council granted full immunity to Bayer. Solutia and Ferro applied for leniency in January 2005 and received a reduction of 35%. The fine of Lonza was reduced by 12%, even though it did not satisfy the conditions of the Belgian 2004 Leniency programme. Indeed, under this programme, when an applicant does not satisfy the conditions for leniency, a reduction of 5-15% is still possible if the applicant does not contest the facts set out in its leniency application. It is important to note that under the new 2007 Leniency programme, such a reduction is no longer possible.
The resulting fines imposed by the Council were as follows: no fine for Bayer; € 175,594 for Ferro; € 197,543 for Solutia; and € 114,618 for Lonza. This decision demonstrates that the Council is ready to adopt cartel decisions in significant cases.
This is the first decision which thoroughly considered the application of the 2004 Belgian leniency notice and the guidelines for the calculation of the fines. The Council strictly applied the 2004 Belgian Guidelines for the calculation of fines (which are similar to the former European Guidelines). It explained that those Guidelines were no longer applicable under the New Belgian Competition Act of 15 September 2006, except where an undertaking had applied for leniency under the 2004 Leniency programme.
Moreover, this decision confirmed that there was a 5 years limitation period similar to the limitation period under European competition law. Finally, the Council found that there was no violation of the “ne bis in idem” principle when the Belgian Competition Council and another national competition authority imposed a fine on the same company for the same infringement of European competition law. The Council explained that there could be no such violation as the maximum fine that it could impose was limited to the Belgian turnover of the companies concerned.