On 1 March 2016, the Belgian Competition Authority ("BCA") adopted new leniency guidelines, following a public consultation launched in November 2015. Revision of the 2007 guidelines had become necessary following the introduction of possible sanctions and immunity from prosecution for natural persons in Book IV of the Economic Law Code. The new guidelines also take into account the changes made in November 2012 to the Model Leniency Programme of the European Competition Network (ECN), as well as the experience gained by the BCA since 2007.
The main innovation of the new guidelines is that immunity from prosecution is now extended to include natural persons; in the previous version of the guidelines, only companies were eligible.
The guidelines provide that individuals can be prosecuted and found guilty for their participation in a cartel – price fixing, limitation of production and market allocations – only if a company (or an association of undertakings) is also prosecuted and found guilty of the same offences.
In order to qualify for immunity, a natural person must be (or have been) involved in a cartel and contribute to proving the existence of the cartel by providing the BCA with information which was not yet in its possession or by acknowledging the existence of a practice prohibited by article IV.1 §4 of the Economic Law Code.
It is noteworthy that natural persons are eligible for immunity regardless of the ranking of their immunity application. This differs significantly from the rule for companies, under which only the first company that applies can benefit from full fine immunity.
Natural persons eligible for immunity from prosecution can file their application either together with a company or on their own initiative, regardless of whether the company has filed a leniency application. The fact that a natural person has applied for immunity from prosecution does not prevent a company from obtaining total immunity or a reduction of the fine.
The above rules apply whether or not the company applying for leniency is the company on behalf of which the applicant for immunity acts or acted.
The leniency guidelines also needed to be amended to take into account the changes made in 2012 to the European Model Leniency Programme, which aims to harmonise leniency programmes of national competition authorities within the European Union. Summary applications are now admissible for all leniency applications, irrespective of type or ranking. This innovation significantly reduces the administrative burden associated with filing a leniency application when different national competition authorities may have competence.
Finally, the procedure and obligations which apply to companies seeking full or partial immunity from fines have been further clarified. The rules on confidentiality have also been reinforced.
The new leniency guidelines enter into force on the day of their publication in the Official Gazette and replace the Competition Council Communication on full or partial immunity from financial penalties in cartel cases.