Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

The LPCE Act 2006 introduced a leniency procedure which may lead to total or partial immunity from fines for any undertaking having cooperated in the investigation (now at Section IV.46 CDE). To obtain immunity, the undertaking having been involved together with others in an anticompetitive practice must contribute to proving the existence of the prohibited practice and to identifying the particip …

Leniency

The Competition Board may order undertakings to cease carrying out a practice that has been established as restrictive (Section IV.48 CDE).

Cease and desist orders

In application of Section IV.79 CDE, the Competition Board may impose on each of the undertakings and associations of undertakings found to have committed restrictive practices, fines not exceeding 10% of their turnover. The Act of 2 May 2019 significantly raised the ceiling of the fine: the maximum amount of the fine is now set at 10% of the undertaking's worldwide turnover instead of the turnover achieved in Belgium (New Section IV.84). 

In addition, it may, by the same decision, at the request of the Competition Prosecutor General, impose on each of the undertakings and associations of undertakings concerned periodic penalty payments to ensure compliance with its decision, of up to 5% of the average daily turnover, per day of non-compliance, with effect from the date fixed by it in its decision.

Where the infringement sanctioned consists in abuse of economic dependence, the maximum fine shall be limited to 2% of the undertaking's turnover. The same percentage applies to periodic penalty payments. 

In addition, Section IV.82 provides that fines of up to 1% of the undertakings' turnover may be handed down where, deliberately or by negligence, they provide inaccurate or misleading information at the time of a notification or in response to a request for information, provide incomplete information or provide information outside the prescribed deadlines, or if they prevent or impede the investigations specified in Section IV.41, IV.44.

The Act of 28 February 2022 also introduced the possibility for the Competition College to impose a periodic penalty payment of a maximum of 1% of the average daily turnover realised in the previous financial year for each day of delay, in case of failure to (i) provide complete and correct information in the context of a request for information or notification of a concentration, (ii) provide an explanation in case the deadline of a request for information was not respected, (iii) consent to investigatory measures, and (iv) appear before the BCA for a hearing. 

Finally, the Competition Act 2013 introduced personal liability for individuals who, on behalf of an undertaking, enter into price agreements, agreements to limit production or the sale of products or services, or bid-rigging agreements. Those individuals incur a fine of between EUR 100 and EUR 10,000 (Section IV.79, §4).

For repeat infringements, in line with the previous guidelines, the 2020 fining guidelines specify that the term “same or similar infringement” must be interpreted as referring to the same or a similar infringement committed in a Member State of the Union which has been the subject of a Commission decision or of the national competition authority of a neighboring country or of UK's national competition authority. Further, the Competition Authority makes it clear that a group of undertakings will not be held responsible for a repeat infringement where the same or similar infringement at issue has been committed by a subsidiary the control of which was acquired after it put an end to its participation in the infringement.

The BCA can now also impose regular fines if interim measures are not respected and is not restricted to only imposing periodic penalty payments.

Every member of an association that has breached competition law can be requested to pay the whole fine imposed on the association by the BCA (limited to a maximum of 10% of a member’s annual worldwide turnover in the case of a fine for a breach of competition law and 1% of its annual worldwide turnover in the case of fines for procedural breaches). An exception can be made for a member proving that it did not implement the association’s infringing decision, was not aware of it or publicly distanced itself from the infringing decision prior to the opening of the investigation.

Fines

The LPCE Act 2006 introduced a leniency procedure which may lead to total or partial immunity from fines for any undertaking having cooperated in the investigation (now at Section IV.46 CDE). To obtain immunity, the undertaking having been involved together with others in an anticompetitive practice must contribute to proving the existence of the prohibited practice and to identifying the participants, inter alia by providing information which the competition authority did not have before, by delivering the evidence of a practice prohibited by Section IV.1 of which the existence had not yet been established. Since the Act of 2 May 2019, leniency may no longer be obtained merely by admitting to having participated in the prohibited practice. 

The application is made before the General Auditor, who can dismiss the petition where it is made after the Statement of Objections has been served to the applicant. The General Auditor establishes a draft decision for the President and informs the applicant of its content to allow him/her to submit written observations to the President. The President may grant leniency where the application satisfies the legal requirements and determine the obligations attached thereto.

The Competition Authority developed its approach in its Leniency Guidelines, lastly revised on 6 May 2020. The document clearly states that leniency is only available in the context of cartels: horizontal or vertical agreements falling outside of the definition of a cartel are not covered. The guidelines also specify that leniency only applies to sanctions handed down by the Competition Authority and does not shield parties to a cartel from any other legal consequence. In addition, if the applicant is an association of undertakings, the leniency notice will only cover the association, not its members. Natural persons may also be held liable for their cartel activity but only where an undertaking or association of undertakings is also convicted. However, where the undertaking at issue no longer exists and has no legal successor, investigations may exceptionally be conducted only against the natural person involved. Contrary to undertakings, natural persons may establish the proof of the infringement only by admitting their involvement therein and may be granted full immunity irrespective of their position in the leniency queue.  

As the ECN Model Leniency Programme, the Belgian guidelines draw a distinction between type 1A full immunity and type 1B full immunity. The difference is whether the data provided by the undertakings allow the Authority to carry out targeted inspections in connection with an alleged cartel or only enable the finding of an infringement in respect of an alleged cartel. The guidelines also define what constitutes added-value information in the context of an application for a fine reduction and detail the procedural rules governing applications.

On 17 March 2022, the Belgian Act transposing the ECN+ Directive entered into force. The rules on leniency applications contained in the Leniency Guidelines are now included in the amended Competition Act and have been updated. Immunity has been extended to criminal sanctions. However, Member States which provide for criminal sanctions for violations of competition rules must ensure that applicants for immunity who meet all the conditions are protected from criminal sanctions. 

Global Competition Law

48. Leniency

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Les notions juridiques connexes

48. Leniency

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise