On 5 September 2007, the Belgian Competition Council published a consultation document on a new leniency notice (New Notice). A leniency programme allows companies, and in Belgium also associations of companies, involved in a cartel to obtain total immunity or a reduction from fines which the Competition Council would have otherwise imposed on them, if they contribute to prove the existence of the cartel and to identify its participants.
The legal basis for leniency in Belgium is contained in article 49 of the New Competition Act. The proposed New Notice implements this provision by (i) setting out the conditions for immunity from fines or reduction of fines; (ii) clarifying in which cases there can be immunity from fines or reduction of fines; and (ii) describing the specific procedure for the treatment of leniency applications. Since most of the provisions of the European Competition Network’s Model Leniency Programme (the ECN Model) are followed, the New Notice would bring the Belgian leniency regime more in line with the regimes at EU level and in other European countries.
Under the New Notice, in order to be able to benefit from full immunity, a company or association of companies would have to supply information to the Competition Authority that will enable it to carry out an inspection. To obtain a reduction of fines, information with 'significant added value' would have to be supplied.
The main changes that would be introduced by the New Notice are as follows:
(i) the possibility to file an oral application;
(ii) the possibility to submit a summary application to the Belgian Authority when a company is applying for immunity to the European Commission, because it is 'particularly well placed' (ie in cases where the affected markets are cross-border markets covering more than three member states or where there are several national markets);
(iii) the introduction of a new scale for the reduction of fines: a 30%-50% reduction for the first applicant that supplies information with 'significant added value' and a reduction of 10%-30% for all of the following applicants supplying such information;
(iv) the introduction of a marker system allowing applicants to reserve their place in the queue and thus giving them more time to reach the leniency threshold; and
(v) the definition of clear rules on the use of languages.
The final version of the New Notice is expected to be published in the course of October 2007