On 10 November 2015, the Belgian Competition Authority (“BCA”) launched a public consultation on new draft leniency guidelines (the “Draft Guidelines”) in order to revise the current 2007 leniency guidelines.
The reasons for the revision of the current guidelines are threefold. First, the introduction of sanctions and immunity from prosecution for natural persons in Book IV of the Belgian Code of Economic Law requires a revision of the 2007 guidelines, which currently only apply to undertakings. Second, the revision should reflect amendments made to the Model Leniency Program of the European Competition Network in November 2012. Finally, the revision aims at reflecting the experience gained by the BCA since 2007.
The main novelty of the Draft Guidelines consists in the introduction of a section on immunity from prosecution applicable to natural persons.
The Draft Guidelines make clear that natural persons can only be prosecuted and found guilty for their participation in a cartel if an undertaking or an association of undertakings is also found guilty on the basis of the same facts.
In addition, the Draft Guidelines provide that natural persons covered by the leniency application filed by an undertaking or an association of undertakings are always eligible for immunity from fines. Natural persons can obtain immunity from prosecution regardless of the rank of their immunity application.
Natural persons seeking immunity from prosecution can file their application either together with an undertaking (or association of undertakings) or on their own initiative. If the latter, a natural person can be granted immunity from prosecution regardless of whether the undertaking (or association of undertakings) has filed a leniency application. However, natural persons seeking immunity on their own must be involved in the cartel at stake and must provide the BCA with the same kind of information that an undertaking (or association of undertakings) would have to submit in order to obtain partial or total immunity from fines.
It is worth noting that, under the Draft Guidelines, the fact that a natural person has applied for immunity from prosecution and provided the information necessary to be granted immunity does not prevent an undertaking or an association of undertakings from obtaining a total or partial reduction of fine.
Finally, the above rules apply regardless of whether the undertaking or association of undertakings which applied for leniency is (or has been) linked to the natural person seeking immunity.
The BCA invites all interested parties to send their comments on the Draft Guidelines to pres@bma-abc.be by 10 January 2016.
