Here we turn the spotlight on Belgium and look at recent Belgian competition law developments and at the latest actions of the Belgian Competition Authority.
On 22 March the Belgian Competition Authority (BCA) published revised leniency guidelines (Guidelines) applicable to penalties in cartels.
A leniency programme can be a useful tool for competition authorities to detect, stop and penalise cartels. Under these programmes individuals and businesses which are involved in a cartel can obtain full or partial leniency from penalties if they cooperate with the competition authorities, such as the BCA. The new Belgian Guidelines are only applicable to cartels (for example, bid rigging, price fixing or market sharing), and not to infringing vertical or horizontal agreements which do not qualify as cartels.
Summary of the new Guidelines
The revised Guidelines reflect the practical experience and learning of the BCA from application of the rules under the previous leniency regime. The Guidelines clarify the duties imposed on undertakings applying for immunity and the procedures the applicant must follow.
Under the Guidelines, depending on the circumstances, a company could benefit from full or partial leniency:
- Full leniency can be granted where the company is the first participant in the cartel to provide evidence of which is sufficient to enable the BCA to carry out searches or enables the BCA to establish an infringement.
- Partial leniency can be granted if the company provides information which adds considerable value to the BCA’s investigation and subsequently cooperates with the BCA’s investigation. The BCA applies a penalty reduction scheme which takes into account the stage in the investigation at which the cartelist applies for leniency, and what information the BCA already has in its possession at the time of the application.
An important change introduced by the Guidelines concerns the application of the leniency programme to individuals. In 2013 the BCA introduced individual liability for participating in a cartel but did not specify how an individual could obtain immunity. The new Guidelines clarify the circumstances in which individuals can seek immunity (generally where that individual confirms the existence of the cartel investigated by the BCA or allows the BCA to discover it) and how individual immunity interacts with the leniency programme for companies.
Confidentiality to support the leniency programme
The new Guidelines also strengthen the rules around protecting the confidentiality of the application, which are aimed at encouraging an increased number of applications and ensuring the effectiveness of the Belgian leniency programme. For instance, whilst a leniency application can be disclosed to other competition authorities, the application cannot be shared with courts and tribunals for the purposes of damages action levied by third parties that claim to have suffered loss as a result of the cartel.
The BCA has also integrated within the Guidelines the new Model Leniency Programme, which was introduced by the European Competition Network in 2012 (a body designed to promote greater co-operation between the competition authorities of the EU Member States). These provisions enable a leniency applicant to make a single summary application to national competition authorities.
How can we help you?
If you or your company is involved in a cartel, the Guidelines will help you to get full or partial leniency for any penalties imposed as a consequence of the cartel. Contact Yves Stans if to discuss any cartel-related issues in full confidentiality.
2. Decisions of the BCA
The first quarter of 2016 has been a busy period for the BCA, with numerous cartel and merger notification decisions:
- On 23 February 2016, the BCA imposed fines of €3.9 million on six companies in relation to the industrial battery cartel. In the period 2004 to 2014 these companies fixed the price of a lead surcharge on sales of batteries to customers in Belgium. The cartel was brought to the attention of the BCA following an application for leniency. For more on leniency, see above.
- On 15 March 2016, the BCA approved the merger between Delhaize Groep NV and Koninklijke Ahold NV, two major retailers in Belgium and the Netherlands, subject commitments. The merged entity is required to divest eight supermarkets, five franchise shops and abandon plans for the opening of a number of new stores.
- On 17 March 2016, the BCA approved the acquisition by Fnac SA, of Darty PLC, both retailers of electronic consumer goods. The French Competition Authority is also investigating the notification. In the meantime South-African retail group Steinhoff International has also launched a bid to acquire Darty PLC, so the outcome of the notification has been placed on hold.
- On 25 March 2016, the BCA conditionally approved the purchase by Kinepolis of two cinemas owned by the Utopolis group. Initial plans to acquire all four cinemas owned by Utopolis were rejected by the BCA, which subjected the transaction to a Phase II investigation. The BCA concluded that Kinepolis can purchase two cinemas subject to the divestiture of two of its existing cinemas along with a package of behavioural commitments.
3. EU cases with a Belgian interest
There are also several cases pending before the European Commission with a Belgian interest:
- On 30 March 2016, the beer industry merger between Belgium’s crown jewel AB Inbev and American brewer SABMiller was notified to the European Commission for approval. Simon Neill, Osborne Clarke’s head of UK competition, commented on the merger in the Sunday Times (subscription required).
- The European Commission is questioning Belgian authorities in relation to a potential breach of State aid rules regarding a deal between Belgium and utility provider Electrabel under which Electrobel will make annual payments of €20 million to extend the operation period for two of its nuclear reactors. The deal also involves several tax implications that could be subject to scrutiny.
- On 16 March 2016, the European Commission announced that it is reviewing a proposed joint venture between Bekaert SA and Canada’s Ontario Teachers’ Pension Plan Board (OTTP) which involves the markets for wire rope. The European Commission has invited interested parties to submit their points of view on the proposed operation.