The Ministry of Economic Affairs published draft policy rules regarding the imposition of fines by the Authority for Consumers & Markets ("ACM"). Additionally, it published draft policy rules regarding leniency for cartel infringements. The policy rules are published for the purpose of consultation.
Whereas these rules were formerly laid down in the Minister of Economic Affairs' policy rules on the imposition of administrative fines by the ACM, the imposition of fines and leniency are now regulated by separate policy rules.
The draft ACM Fining Policy Rules 2014 have been introduced to simplify the existing rules and to harmonise these rules with related legislation. The draft policy rules do not contain any substantive changes to the previous policy rules. A relevant change from a competition law perspective is the calculation of the base fine. Under the previous fining policy rules the base fine (basisboete) amounted to 10% of the relevant turnover. Subsequently, an aggravating factor between 0 and 5 was applied to the base amount. Under the ACM Fining Policy Rules 2014 the base fine ranges from 0 to 50% of the relevant turnover. An aggravating factor is no longer applied.
The draft Policy Rules on Leniency for Cartel Infringements ("Leniency Policy Rules") are based on the revised Model Leniency Programme of the European Competition Network. The Leniency Policy Rules include two important changes to the former leniency rules. The first change relates to fine reduction for the first leniency applicant. Under the former rules first applicants were granted a benefit starting at 60% fine reduction up to full immunity. According to the draft policy rules, first applicants are now granted full immunity from fines.
The second important change concerns fine reduction for leniency applicants that are not eligible for immunity. The Leniency Policy Rules introduce three reduction categories: 30-50%, 20-30% and ≤ 20%. The categories respectively apply to the second, third and subsequent applicants.
It should be noted that the legislative proposal relating the increase of fines for cartel infringements have not been taken into account in the ACM Fining Policy Rules 2014. If the said legislative proposal is to be passed, an amendment of the ACM Fining Policy Rules 2014 will be required.
The consultation phases end on 13 June 2014.