On August 26 2014 the Competition Authority adopted new guidelines on the method that it will apply when calculating fines in competition cases.
The guidelines currently in effect largely follow EU guidelines, although there are some notable differences. However, the authority has now opted for full alignment with the EU guidelines as a means of increasing legal certainty and transparency. That said, its statement that it intends to take guidance from the EU guidelines "as a matter of principle" seems to give the authority some flexibility to deviate from them. It therefore remains to be seen how fines are calculated in future decisions and to what extent the new guidelines will change Competition Authority policy. The authority's past practice has generally been to take a moderate approach when imposing fines.
The adoption of the new guidelines provides at least the potential for significantly higher fines. This mainly results from the revised approach to the adjustment for the duration of the infringement, where the multiplier effect will now fully apply.
The authority's guidelines are brief. Apart from explaining the principle of aligning the authority's approach with that of the European Union, they merely list a number of specific points where it will deviate from the EU rules as follows:
- When setting the basic amount of a fine, the authority will take account of the value of the undertaking's sales in Belgium to which the infringement directly or indirectly relates; specific rules have been defined to cover the situation where the undertaking involved has no such sales in Belgium (but has other sales in the country).
- References to EU-specific rules, such as the EU leniency regime or the maximum level for fines, must be read as references to the corresponding Belgian provisions.
- In relation to aggravating circumstances, the reference to "the same or a similar infringement" is interpreted as referring to cases in which the European Commission or a national competition authority in a neighbouring country (including the United Kingdom) has already adopted a decision.
- The authority will not regard a situation in which the infringement is committed by a subsidiary which at the time was not yet part of the group as giving rise to a repeat offence.
The new guidelines apply only to fines imposed on undertakings. The new Competition Act also provides that fines of up to €10,000 can be imposed on individuals. However, in relation to this type of fine, the guidelines state merely that they will be set on the basis of the gravity of the infringement, the degree of the individual's involvement and other characteristics of the case. This matter is therefore left to be developed in future decisions.
The new guidelines will enter into force on November 1 2014. A transitional regime will apply to cases which are in their final procedural stage (ie, where the prosecutor has filed a draft decision), and to pending settlement procedures.
For further information on this topic please contact Koen Platteau at Simmons & Simmons LLP by telephone (+32 2 542 0960), fax (+32 2 542 0961) or email ([email protected]). The Simmons & Simmons LLP website can be accessed at www.simmons-simmons.com.