Anti cartel enforcement

Information is provided for the ICN member competition agencies about each other’s legislation concerning hardcore cartels. At the same time it supplies information for businesses participating in cartel activities about the rules applicable to them; moreover, it enables businesses which suffer from cartel activity to get information about the possibilities of lodging a complaint in one or more jurisdictions.

This information is only a starting point.

Following topics are treated:

1. Information on the law relating to cartels
2. Scope and nature of prohibition on cartels
3. Investigating institutions
4. Decision making institutions
5. Handling complaints and initiations of proceedings
6. Leniency policy
7. Investigative powers of the enforcing institution
8. Procedural rights of business/ individuals
9. Limitation periods and deadlines
10. Types of decisions
11. Sanctions for procedural breaches
12. Sanctions of the merits of the case
13. Possibilities of appeal

1. Information on the law relating to cartels

1.A. Law(s) covering cartels

Act  on the Protection of economic Competition consolidated on 15th September 2006 (APEC) (Belgian Official Gazette, 29.09.2006 p. 50.613)

1.B. Implementing regulation(s) (if any)

Royal Decree of 31 October 2006 (PDF, 34.18 Kb) on procedures  with regard to the Protection of Economic Competition.

Royal Decree of 31 October 2006 (PDF, 28.61 Kb) on the filing of complaints  and requests in accordance with Article 44 par.1, 2 and 3 of the Act on the Protection of Economic Competition, (APEC) consolidated on 15/9/2006

Royal Decree of 31 October 2006 (PDF, 23.85 Kb) on issuing of copies  of files in accordance with the act on the protection of economic competition consolidated on 15th September 2006.

Ministerial Decree of 31 October 2006 (PDF, 18.88 Kb) on the method of transmitting  the Competition Council’s dossier to the Brussels Court of Appeal.

Ministerial Decree of 31 October 2006 (PDF, 17.25 Kb) on the method of transmitting the proceedings dossier from the sectoral regulatory authority  to the Competition Council

Royal Decree of 31 October 2006 (PDF, 24.5 Kb) relating to the payment and recovery of the administrative fines  and penalties provided for in the law on the protection of economic competition, consolidated on the 15^th September 2006.

1.C. Interpretative guideline(s) (if any)

Notice  of the Competition Council (PDF, 66.76 Kb) on immunity from fines and reduction of fines in cartel cases.

1.D. Other relevant materials (if any)

Decisions of the Competition Council: restrictive practices and concentrations.

Languages: French or Dutch only

2. Scope and nature of prohibition on cartels

2.A. Does your law or case law define the term “cartel”? If not, please indicate the term you use instead.

Our law “The Act on the protection of economic competition consolidated on the 15 September 2006 does not use the term “cartel”. Instead we refer to art. 2.

Art. 2. § 1. Without the need for a prior decision to that effect, all agreements between undertakings, all decisions by associations of undertakings and all concerted practices, the aim or consequence of which is to prevent, restrict or distort significantly competition in the Belgian market concerned or in a substantial part of that market are prohibited, and in particular those which consist in:

1. setting directly or indirectly purchase prices or selling prices or other transaction conditions;
2. limiting or controlling production, outlets, technical development or investments;
3. dividing up markets or sources of supplies;
4. applying, with regard to business partners, unequal conditions for equivalent services, thus putting them at competitive disadvantage;
5. making the conclusion of contracts dependent on the acceptance by the partners of additional services, which, by their nature or according to business practices, are unrelated of the said contracts.

§ 2. Agreements or decisions prohibited pursuant to this are ipso jure invalid.

§ 3. However, the provisions of § 1.shall not apply:

1. to any agreement or category of agreements between undertakings,
2. to any decision or category of decisions of associations of undertakings, and
3. to all concerted practices or category of concerted practices

which contribute to improving production or distribution or to promoting technical or economic progress or which enable small and medium-sized undertakings to assert their competitive position in the market concerned or internationally, while enabling users to benefit from a fair share of the resulting benefits, without however:

1. imposing on the undertakings concerned restrictions which are not indispensable in order to  reach those objectives;
2. giving the undertaking the possibility to eliminate competition for a substantial part of the affected products.

2.B. Does your legislation or case law distinguish between very serious cartel behavior

(“hardcore cartels” – e.g.: price fixing, market sharing, bid rigging or production or sales quotas* and other types of “cartels”?

(*In some jurisdictions these types of cartels – and possibly some others – are regarded as particularly serious violations. These types of cartels are generally referred to as “hardcore cartels”. Hereinafter this terminology is used.)

No.

2.C. Scope of the prohibition of hardcore cartels: [including any exceptions, exclusions and defences’ e.g. for particular industries or sectors.]

Not applicable

2.D. Is participation in a hardcore cartel illegal per se?

Not applicable

2.E. Is participation in a hardcore cartel a civil or administrative or criminal offence or a combination of these?

It is an administrative offence

3. Investigating institution(s)

3.A. Name of the agency, which investigates cartels:

• An investigation can be opened by a decision of the College of Competition Prosecutors meeting under the chairmanship of the director general for competition in cases covered by the act (art. 44 and 45 of the act)
• Cases shall be investigated by the College of Competition Prosecutors by the inspection of the directorate general for competition:
• At their own initiative or at the minister’s request where there is serious evidence or in response to a complaint from a natural or legal person demonstrating a direct, current interest in the case of infringements of articles 2, § 1, 3,9, § 1 or in the case of non compliance with a decision taken pursuant to articles 9 § 5,53,58, or 59.

The College of Competition Prosecutors is set up within the Council of Competition.

Their main tasks consist in:

1. heading and organizing investigations;
2. issuing instructions to agents of the Competition Service which is a unit of the Federal Public Service assigned to carry out investigative tasks;
3. drawing up the investigation report and presenting it to the Competition Council.

We recommend, to contact beforehand the registry of the Council of Competition for persons who like to file a complaint (see “contact”).

3.B. Are there other authorities which may assist the investigating agency? If yes, please name the authorities and the type of assistance they provide.

• Police (coercive measures at inspections)
• Directorate General Enforcement and
• Mediation of the Federal Public Service (art. 44 § 3)

4. Decision-making institution(s)* [to be filled in only if this is different from the investigating agency]

*Meaning: institution taking a decision on the merits of the case (e.g. prohibition decision, imposition of fine).

4.A. Name of the agency making decisions in cartel cases

• The College of Competition Prosecutors (art. 45)
• The Competition Council (art 48)

4.B. Contact details of the agency

See point 3/D. above.

4.C. Contact point for questions and consultations

See point 3/D. above.

4.D. Describe the role of the investigating agency in the process leading to the sanctioning of the cartel conduct

Requests and complaints relating to restrictive competitive practices shall be submitted to the College of Competition Prosecutors. The College decides whether the complaint is grounded or not; If the complaint is considered admissible the College starts an investigation. (art 45) (art 44) (see also point 3.A)

4.E. What is the role of the investigating agency if cartel cases belong under criminal proceedings?

Not applicable

5. Handling complaints and initiation of proceedings

5.A. Basis for initiating investigations in cartel cases: [complaint, ex officio, leniency application, notification, etc.]

• investigations are normally commenced on the basis of a complaint,
• a leniency application,
• ex officio or,
• a request by the minister or,
• a sectoral regulator.

5.B. Are complaints required to be made in a specific form (e.g. by phone, in writing, on a form, etc.)?

See form (PDF, 25.05 Kb) annexed to the Royal Decree relating to the filing of complaints and requests in accordance with art. 44 §1, 2, and 3 of the act on the protection of economic competition consolidated on 15^th September 2006 (only the forms in Dutch and French are official, the form in English is an unofficial translation merely for your information).

This form indicates the information which must be provided when submitting a complaint or request to the College of Competition

5.C. Legal requirements for lodging a complaint against a cartel: [e.g. is legitimate interest required, or is standing to make a complaint limited to certain categories of complainant?]

There is no specific legal requirement in the Competition Act but the Competition Council considers that the complainant must have legitimate interest.

5.D. Is the investigating agency obliged to take action on each complaint that it receives or does it have discretion in this respect?

The College of Competition Prosecutors sets priorities and thus complaints without sufficient interest (not grounded) may not be effectively treated.

5.E. If the agency intends not to pursue a complaint, is it required to adopt a decision addressed to the complainant explaining its reasons?

Yes. See art 45 §2 (Act on the protection of economic competition) .

5.F. Is there a time limit counted from the date of receipt of a complaint by the competition agency for taking the decision on whether to investigate or reject it?

No.

6. Leniency policy*

6.A. What is the official name of your leniency policy (if any)?

• The term leniency covers according to our act “a total or partial exemption from fines.”
• See art. 49 (of the Act on the protection of economic competition) It covers a wide scope of applications concerning the forbidden restrictive practices.
• But the notice of the Competition Council on immunity from fines and reduction of fines in cartel cases is only dealing with horizontal agreements.

This notice has been published in the Belgian Official Gazette (Belgisch Staatsblad/Moniteur belge) of 22 October 2007

6.B. Does your jurisdiction offer full leniency as well as partial leniency (i.e. reduction in the sanction / fine), depending on the case?

• Our jurisdiction provides both full leniency (immunity from fines) and
• partial leniency (reduction of fines)

6.C. Who is eligible for full leniency?

The Competition Council will grant an undertaking immunity from any fine which would otherwise have been imposed if:

The Belgian Competition Authority has no information relating to the cartel (type 1A)

• The undertaking is the first to submit evidence which may enable the Belgian Competition Authority to start an inspection relating to this cartel.
• The Belgian Competition Authorities did not have at the time of the submission of those elements, sufficient information and evidence to start an inspection in connection with the alleged cartel;

Or, in case of a type 1B:

• the undertaking is the first to submit evidence which may enable the Competition Council to find an infringement of Article 81 of the EC Treaty and/or Article 2 APEC (Competition Act) affecting the Belgian territory;
• the Belgian competition authorities did not have, at the time of the submission of those elements, sufficient information and evidence to find an infringement of Article 81 EC and/or Article 2 APEC in connection with the alleged cartel;

(See Notice of the Competition Council on immunity from fines and reduction of fines in cartel cases)

6.D. Is eligibility for leniency dependent on the enforcing agency having either no knowledge of the cartel or insufficient knowledge of the cartel to initiate an investigation?

In this context, is the date (the moment) at which participants in the cartel come forward with information (before or after the opening of an investigation) of any relevance for the outcome of leniency applications?

Yes in both cases.

6.E. Who can be a beneficiary of the leniency program (individual / businesses)?

Undertakings.

6.F. What are the conditions of availability of full leniency?

See the answer given to point 6/C

6.G. What are the conditions of availability of partial leniency (such as reduction of sanction / fine / imprisonment):

Partial leniency can be granted before or after the initiation of the proceedings.

If the Competition Council has already granted conditional immunity from the fine to an undertaking, another co-operating undertaking cannot have full immunity, therefore the Council will only appropriately reduce the fine expected to be imposed on the undertaking on the condition that the undertaking provides it with evidence which represents clearly added value with respect to the evidence already in the Council's possession.

The concept of “added value” refers to the extent to which the evidence provided strengthens, by its very nature and/or its level of detail, the Belgian authorities’ ability to prove the facts in question.

See notice of the Competition Council on immunity from fines and reduction of fines in cartel cases

6.H. Obligations for the beneficiary after the leniency application has been accepted

Both the immunity and the leniency applicant must have stopped the participation in the cartel, and its co-operation must be complete, permanent and swift during the whole procedure.

6.I. Are there formal requirements to make a leniency application?

An undertaking wishing to benefit from immunity from a fine or a reduction of a fine should file an application with the Registry of the Competition Council at the attention of the Competition Prosecutor General and provide it with all evidence that is already available to it relating to the suspected infringement. 

6.J. Are there distinct procedural steps within the leniency program?

Yes. See Notice of the Competition Council on immunity from fines and reduction of fines in cartel cases.

6.K. At which time during the application process is the applicant given certainty with respect to its eligibility for leniency, and how is this done?

• The application is examined immediately.
• See art 49 of the APEC.

6.L. What is the legal basis for the power to agree to grant leniency? Is leniency granted on the basis of an agreement or is it laid down in a (formal) decision? Who within the agency decides about leniency applications?

• The Competition Council grants leniency on the basis of the notice of the Competition Council on immunity from fines and reduction of fines in cartel case.
• Leniency is granted in the final decision.

6.M. Does your legislation have a marker system? If so, please describe it.

• Yes, there is a marker system.
• The undertaking may initially apply for a marker to get immunity from fines.
• The competition prosecutor may grant a marker protecting an immunity applicant’s place in the queue, for a period to be specified on a case-by-case basis, in order to allow for the gathering of the necessary information of evidence;
• Where a marker is granted, the competition prosecutor determines the period within which the applicant has to perfect the marker by submitting the information and evidence required to meet the relevant threshold for immunity.
• If the applicant perfects the marker within the period set by the competition prosecutor, the information and evidence provided will be deemed to have been submitted on the date when the marker was granted.

6.N. Does the system provide for any extra credit* for disclosing additional violations?

*Also known as: “leniency plus”, “amnesty plus” or “immunity plus”. This category covers situations where a leniency applicant, in order to get as lenient treatment as possible in a particular case, offers to reveal information about participation in another cartel distinct from the one which is the subject of its first leniency application)

No.

6.O. Is the agency required to keep the identity of the beneficiary confidential? If yes, please elaborate.

The leniency application will only become apparent in the final decision.

6.P. Is there a possibility of appealing an agency’s decision rejecting a leniency application?

Yes, you can appeal at the Court of Appeal against decisions of the Council of Competition.

6.Q. Contact point where a leniency application can be lodged

COMPETITION COUNCIL

Registry

North Plaza A

8^th floor

Koning Albert laan / Boulevard du Roi Albert II 9

1210 Brussels

Tel:+32 2 277 79 18

Fax:+32 2 277 53 23

E-mail: raco@economie.fgov.be

Applications can be sent via postal delivery or by fax and e-mail to the registry of the Competition Council at the attention of the competition prosecutor general. The application must be submitted in 8 copies during office hours (work days between 9 a.m. and 4 p.m.)

6.R. Does the policy address the possibility of leniency being revoked? If yes, describe the circumstances where revocation would occur.

Can an appeal be made against a decision to revoke leniency?

No.

6.S. Does your policy allow for “affirmative leniency”, that is the possibility of the agency approaching potential leniency applicants?

No.

7. Investigative powers of the enforcing institution(s)*

*“Enforcing institutions” may mean either the investigating or the decision-making institution or both. “Searches/raids” means all types of search, raid or inspection measures)

7.A. Briefly describe the investigative measures available to the enforcing agency such as requests for information, searches/raids, electronic or computer searches, expert opinion, etc. and indicate whether such measures requires a court warrant.

The investigative measures available are:

• request for information;
• witness statements;
• inspections (at business premises with the prior authorization of the president of the Competition Council and with a prior authorization of an examining magistrate also at the private dwellings of staff) (art 44 of the APEC);
• temporary seizure of documents and taking of copies.

7.B. Can private locations, such as residences, automobiles, briefcases and persons be searched, raided or inspected? Does this require authorization by a court?

Yes, see details in point 7/A (art 44 APEC).

7.C. May evidence not falling under the scope of the authorization allowing the inspection be seized / used as evidence in another case? If yes, under which circumstances (e.g. is a post-search court warrant needed)?

No.

7.D. Have there been significant legal challenges to your use of investigative measures authorized by the courts? If yes, please briefly describe them

No.

8. Procedural rights of businesses / individuals

8.A. Key rights of defense in cartel cases

Key rights of defense include:

• right of access to documents once the motivated report has been issued (documents from third parties containing business secrets shall be withdrawn from the file and replaced by new confidential documents (articles 45, 48);
• right to respond in writing and orally (articles 45 and 48 of the APEC);
• right to legal representation (general principle);
• right not to self-incriminate (ECMR).

8.B. Protection awarded to business secrets (competitively sensitive information): is there a difference depending on whether the information is provided under a compulsory legal order or provided under informal co-operation?

There is no difference between business secrets on the basis of their way of collection.

The president of the Competition Council shall invite the undertakings whose activities have been investigated to indicate the confidential parts of the decision (art 48 §2 of the APEC)

9. Limitation periods and deadlines

9.A. What is the limitation period (if any) from the date of the termination of the infringement by which the investigation / proceedings must begin or a decision in the merits of the case must be made?

The proceedings must start within five years of the facts that may constitute an infringement.

9.B. What is the deadline, statutory or otherwise (if any), for the completion of an investigation or to make a decision in the merits?

The limitation period (which is not identical to that mentioned in 9. A.) is five years from the start of the proceedings, but all evidence-taking and any decision starts a new five-year-period.

9.C. What are the deadlines, statutory or otherwise (if any), to challenge the commencement or completion of an investigation or a decision regarding sanctions?

Appeals can be lodged in the form of a signed application lodged with the registry of the Brussels Court of Appeal within 30 days after notification of the decision.

(See also article 67)

10. Types of decisions

10.A. Please list which types of decisions on the merits of the case can be made in cartel cases under the laws listed under Section 1.

The Competition Council may

• establish that the conduct is unlawful
• order the conduct to be brought to an end
• impose fines or periodic penalty payments
• decide to dismiss the case
• accept commitments

10.B. Please list which types of decisions on the merits of the case can be made in hardcore cartel cases under the laws listed under Section 1 (if different from those listed under 10/A).

Not different from those listed under 10/A.

10.C. Can interim measures be ordered during the proceedings in cartel cases? (if different measures for hardcore cartels please describe both.) Which institution (the investigatory / the decision-making one) is authorized to take such decisions? What are the conditions for taking such a decision? *

(*In some jurisdictions, in cases of urgency due to the risk of serious and irreparable damage to competition, either the investigator or the decision-making agency may order interim measures prior to taking a decision on the merits of the case [e.g.: by ordering the immediate termination of the infringement]. Only for agencies which answered “yes” to question 2.C. above)

The president of the Competition Council can order interim measures (no difference between hardcore cases and others) where it is urgent to avoid a situation that may lead to serious, imminent and irreparable damage to the undertakings whose interests are affected ( see section 7 “Interim measures of the APEC).

11. Sanctions for procedural breaches (non-compliance with procedural obligations)*

(*In some jurisdictions non-compliance with procedural obligations (e.g. late provision of requested information, false or incomplete provision of information, lack of notice, lack of disclosure, obstruction of justice, destruction of evidence, challenging the validity of documents authorizing investigative measures, etc.) can be sanctioned)

11.A. Grounds for the imposition of procedural sanctions / fines:

^“The Council chamber hearing the case may impose on persons, undertakings or associations of undertakings involved; fines of up to 1% of turnover, determined in accordance with the criteria set out in article 86 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;
• they provide incomplete information;
• they do not provide the information within the prescribed time;
• they prevent or impede the investigations specified in article 44 as well as the inquiries referred to in article 47”

(art.64 §1 of the APEC).

11.B. Type and nature of the sanction (civil, administrative, criminal, combined)

Administrative

11.C. On whom can procedural sanctions be imposed?

On the party (undertaking) or other persons participating in the proceedings.

11.D. Criteria for determining the sanction / fine

See above (11/A).

11.E. Are there maximum and / or minimum sanctions / fines?

See above (11/A).

12. Sanctions on the merits of the case

12.A. Type and nature of sanctions in cartel cases (civil, administrative, criminal, combined)

Administrative.

12.B. On whom can sanctions be imposed?

To the natural or legal person(s) responsible.

12.C. Criteria for determining the sanction / fine (e.g.: gravity, duration of the violation, benefit gained from the violation)

None at this moment.

12.D. Are there maximum and / or minimum sanctions / fines?

“The chamber of the Competition Council hearing the case may impose on each of the undertakings and associations of undertakings concerned, fines not exceeding 10% of their turnover, determined in accordance with the criteria referred to in article 86. In addition, it may, by the same decision, at the request of the competition prosecutor, impose on each of the undertakings and associations of undertakings concerned periodic penalty payments for non-compliance with its decision, of up to 5% of the average daily turnover, determined in accordance with the criteria referred to in article 86, per day of non-compliance, with effect from the date fixed by it in its decision.” (Art.63 of the APEC)

12.E. Guideline(s) on calculation of fines

None

12.F. Does a challenge to a decision imposing a sanction / fine have an automatic suspensory effect on that sanction / fine? If it is necessary to apply for suspension, what are the criteria?

13. Possibilities of appeal

13.A. Does your law provide for an appeal from a decision that there has been a violation of a prohibition of cartels? If yes, what are the grounds of appeal, such as questions of law or fact or breaches of procedural requirements?

• There is an appeal on grounds of fact
• and law (including procedural requirements).

13.B. Before which court or agency should such a challenge be made? [If the answer to question 13/A is affirmative]

The appeal must be lodged with the Brussels Court of Appeal.