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Communication conjointe du Conseil de la concurrence et du Corps des rapporteurs sur l'immunité d'amendes et la réduction de leur montant dans les affaires portant sur des ententes. - Addendum Translation of the French and Dutch texts published Joint notice of the Competition Council and the Corps of Examiners on immunity from fines and reduc(...) Communication conjointe du Conseil de la concurrence et du Corps des rapporteurs sur l'immunité d'amendes et la réduction de leur montant dans les affaires portant sur des ententes. - Addendum Translation of the French and Dutch texts published Joint notice of the Competition Council and the Corps of Examiners on immunity from fines and reduc(...)
SERVICE PUBLIC FEDERAL ECONOMIE, P.M.E., CLASSES MOYENNES ET ENERGIE SERVICE PUBLIC FEDERAL ECONOMIE, P.M.E., CLASSES MOYENNES ET ENERGIE
Communication conjointe du Conseil de la concurrence et du Corps des Communication conjointe du Conseil de la concurrence et du Corps des
rapporteurs sur l'immunité d'amendes et la réduction de leur montant rapporteurs sur l'immunité d'amendes et la réduction de leur montant
dans les affaires portant sur des ententes. - Addendum dans les affaires portant sur des ententes. - Addendum
Translation of the French and Dutch texts published in the Belgian Translation of the French and Dutch texts published in the Belgian
Bulletin of Acts, Orders and Decrees on the 30th of April 2004 Ed 2, Bulletin of Acts, Orders and Decrees on the 30th of April 2004 Ed 2,
p. 36257 and 5th of May 2004 Ed 2, p. 36912 p. 36257 and 5th of May 2004 Ed 2, p. 36912
Joint notice of the Competition Council and the Corps of Examiners on Joint notice of the Competition Council and the Corps of Examiners on
immunity from fines and reduction of fines in cartel cases immunity from fines and reduction of fines in cartel cases
A. INTRODUCTION A. INTRODUCTION
1) This notice concerns secret cartels between undertakings aimed at 1) This notice concerns secret cartels between undertakings aimed at
fixing prices, production or sales quotas, sharing markets including fixing prices, production or sales quotas, sharing markets including
bid-rigging or restricting imports or exports. bid-rigging or restricting imports or exports.
2) By artificially restricting the competition that would normally 2) By artificially restricting the competition that would normally
prevail between them, undertakings exactly avoid those pressures that prevail between them, undertakings exactly avoid those pressures that
lead them to innovate, both in terms of products development and of lead them to innovate, both in terms of products development and of
implementing more efficient production methods. Such practices also implementing more efficient production methods. Such practices also
lead to more expensive raw materials and components for Belgian or lead to more expensive raw materials and components for Belgian or
European companies that purchase from such producers. In the long term European companies that purchase from such producers. In the long term
they impair competitiveness, reduce employment opportunities and have they impair competitiveness, reduce employment opportunities and have
a negative effect on the maintenance and the increase of consumer a negative effect on the maintenance and the increase of consumer
purchasing, on the quality and the quantity of the available products purchasing, on the quality and the quantity of the available products
and on the consumer's choice of those products. Such practices are and on the consumer's choice of those products. Such practices are
among the most serious restrictions of competition encountered by the among the most serious restrictions of competition encountered by the
competition authorities and ultimately result in increased prices and competition authorities and ultimately result in increased prices and
reduced choice for the consumer. They also harm European as well as reduced choice for the consumer. They also harm European as well as
Belgian industry. Belgian industry.
3) Article 5 of EC Council Regulation No 1/2003 of 16 December 2002 on 3) Article 5 of EC Council Regulation No 1/2003 of 16 December 2002 on
the implementation of the rules on competition laid down in Articles the implementation of the rules on competition laid down in Articles
81 and 82 of the EC Treaty states that the competition authorities of 81 and 82 of the EC Treaty states that the competition authorities of
the Member States shall have the power to apply Articles 81 and 82 of the Member States shall have the power to apply Articles 81 and 82 of
the EC Treaty in individual cases. For this purpose, acting on their the EC Treaty in individual cases. For this purpose, acting on their
own initiative or on a complaint, they may take the following own initiative or on a complaint, they may take the following
decisions : decisions :
- requiring that an infringement must be brought to an end, - requiring that an infringement must be brought to an end,
- ordering interim measures, - ordering interim measures,
- accepting commitments, - accepting commitments,
- imposing fines, penalty payments or any other penalty provided for - imposing fines, penalty payments or any other penalty provided for
in their national law. in their national law.
EC Council Regulation No 1/2003 comes into force on 1st May 2004 and EC Council Regulation No 1/2003 comes into force on 1st May 2004 and
brings about a close cooperation between the European Commission and brings about a close cooperation between the European Commission and
the competition authorities of the Member States, and between the the competition authorities of the Member States, and between the
competition authorities of the Member States themselves. competition authorities of the Member States themselves.
4) A leniency program has already been introduced at European 4) A leniency program has already been introduced at European
Community level (see Commission notice on immunity from fines and Community level (see Commission notice on immunity from fines and
reduction of fines in cartel cases - 2002/C45/03 - OJ C 45 of 19 reduction of fines in cartel cases - 2002/C45/03 - OJ C 45 of 19
February 2002) and in a number of other EC Member States. The February 2002) and in a number of other EC Member States. The
introduction of such a program in Belgium seems to be necessary and introduction of such a program in Belgium seems to be necessary and
also shows the willingness of the Competition Council to make strike also shows the willingness of the Competition Council to make strike
against illegal agreements between undertakings a priority. against illegal agreements between undertakings a priority.
5) The Competition Council is aware that some undertakings involved in 5) The Competition Council is aware that some undertakings involved in
this type of illegal agreements are willing to put an end to their this type of illegal agreements are willing to put an end to their
participation and inform the Council of the existence of such participation and inform the Council of the existence of such
agreements, but are refrained from doing so by the high fines to which agreements, but are refrained from doing so by the high fines to which
they are potentially exposed. Under Article 36 of the Act on the they are potentially exposed. Under Article 36 of the Act on the
Protection of Economic Competition, coordinated on 1 July 1999 Protection of Economic Competition, coordinated on 1 July 1999
(hereinafter APEC), the Competition Council may in fact condemn each (hereinafter APEC), the Competition Council may in fact condemn each
of the undertakings involved with fines that do not exceed 10 % of of the undertakings involved with fines that do not exceed 10 % of
their aggregate turnover achieved in the previous financial year in their aggregate turnover achieved in the previous financial year in
the domestic and export markets. The Council may also, in the same the domestic and export markets. The Council may also, in the same
decision, impose penalty payments for non-compliance with its decision decision, impose penalty payments for non-compliance with its decision
on a daily basis of maximum 6,200 euro per undertaking involved. on a daily basis of maximum 6,200 euro per undertaking involved.
6) Consequently, the Competition Council decided to adopt a notice on 6) Consequently, the Competition Council decided to adopt a notice on
the conditions for the immunity or reduction of fines in cartel cases. the conditions for the immunity or reduction of fines in cartel cases.
Following the example of the European Commission and a number of other Following the example of the European Commission and a number of other
national competition authorities, it considered that it is in the national competition authorities, it considered that it is in the
interest of national and Community economy to grant favourable interest of national and Community economy to grant favourable
treatment to undertakings that cooperate with the competition treatment to undertakings that cooperate with the competition
authorities. The interests of consumers and citizens in ensuring that authorities. The interests of consumers and citizens in ensuring that
secret cartels are detected and prohibited outweigh the interest in secret cartels are detected and prohibited outweigh the interest in
fining those undertakings that enable the Competition Council to fining those undertakings that enable the Competition Council to
detect and punish such practices. detect and punish such practices.
7) Considering the allocation of powers between the Belgian 7) Considering the allocation of powers between the Belgian
competition authorities, the Corps of Examiners is involved in the competition authorities, the Corps of Examiners is involved in the
present notice that determines and regulates the procedure for the present notice that determines and regulates the procedure for the
practical implementation of this leniency programme. Article 14 APEC practical implementation of this leniency programme. Article 14 APEC
states that the examiners shall in particular lead and organise the states that the examiners shall in particular lead and organise the
investigation, give mission orders to the civil servants of the investigation, give mission orders to the civil servants of the
Office, draw up and present the investigation report to the Office, draw up and present the investigation report to the
Competition Council, which is the court having power of decision. Competition Council, which is the court having power of decision.
8) The present notice specifies the conditions for granting immunity 8) The present notice specifies the conditions for granting immunity
from a fine or reduction of a fine and the way in which the from a fine or reduction of a fine and the way in which the
Competition Council can perfectly be informed of the degree of Competition Council can perfectly be informed of the degree of
openness and cooperation of the undertaking that intends to make use openness and cooperation of the undertaking that intends to make use
of this procedure. The Corps of Examiners is best placed to verify if of this procedure. The Corps of Examiners is best placed to verify if
all conditions for granting immunity from a fine or reduction of a all conditions for granting immunity from a fine or reduction of a
fine are fulfilled. After the investigation, the Competition Council fine are fulfilled. After the investigation, the Competition Council
examines and decides notably on the basis of the investigation report examines and decides notably on the basis of the investigation report
if the conditions are fulfilled and grants immunity from fines or if the conditions are fulfilled and grants immunity from fines or
reduction of fines. reduction of fines.
9) The Competition Council considers that the collaboration of an 9) The Competition Council considers that the collaboration of an
undertaking in the detection of the existence of a cartel has an undertaking in the detection of the existence of a cartel has an
intrinsic value. The Corps of Examiners also shares this opinion. A intrinsic value. The Corps of Examiners also shares this opinion. A
decisive contribution to the finding of an infringement accompanied decisive contribution to the finding of an infringement accompanied
with evidence revealing the existence of a cartel may justify the with evidence revealing the existence of a cartel may justify the
granting of immunity from any fine to the undertaking in question, on granting of immunity from any fine to the undertaking in question, on
condition that certain additional requirements are fulfilled. condition that certain additional requirements are fulfilled.
Moreover, cooperation by one or more undertakings not fulfilling the Moreover, cooperation by one or more undertakings not fulfilling the
conditions to be granted immunity from fines may justify a reduction conditions to be granted immunity from fines may justify a reduction
of the fine which would otherwise have been imposed by the Competition of the fine which would otherwise have been imposed by the Competition
Council. Any reduction of a fine must reflect an undertaking's actual Council. Any reduction of a fine must reflect an undertaking's actual
contribution to the establishment of the infringement. Reductions must contribution to the establishment of the infringement. Reductions must
be limited to those undertakings that provide the Belgian authorities be limited to those undertakings that provide the Belgian authorities
with evidence that adds significant value to that already in their with evidence that adds significant value to that already in their
possession. possession.
10) The Competition Council and the Corps of Examiners will be able to 10) The Competition Council and the Corps of Examiners will be able to
examine whether it is necessary to modify the present notice once examine whether it is necessary to modify the present notice once
sufficient experience in applying it has been acquired. sufficient experience in applying it has been acquired.
B. IMMUNITY FROM FINES B. IMMUNITY FROM FINES
11) The Competition Council will grant an undertaking immunity from 11) The Competition Council will grant an undertaking immunity from
any fine which would otherwise have been imposed if : any fine which would otherwise have been imposed if :
a) the undertaking is the first to submit evidence which may enable a) the undertaking is the first to submit evidence which may enable
the Competition Council to find an infringement of Article 81 of the the Competition Council to find an infringement of Article 81 of the
EC Treaty and/or Article 2 APEC affecting the Belgian territory; EC Treaty and/or Article 2 APEC affecting the Belgian territory;
b) the Belgian competition authorities did not have, at the time of b) the Belgian competition authorities did not have, at the time of
the submission of those elements, sufficient information and evidence the submission of those elements, sufficient information and evidence
to find an infringement of Article 81 EC and/or Article 2 APEC in to find an infringement of Article 81 EC and/or Article 2 APEC in
connection with the alleged cartel; connection with the alleged cartel;
c) the undertaking fully cooperates with these authorities on a c) the undertaking fully cooperates with these authorities on a
continuous basis and expeditiously throughout the procedure and continuous basis and expeditiously throughout the procedure and
provides them with all evidence that comes into its possession or is provides them with all evidence that comes into its possession or is
available to it relating to the suspected infringement. In particular, available to it relating to the suspected infringement. In particular,
it remains at their disposal to answer swiftly any request that may it remains at their disposal to answer swiftly any request that may
contribute to the establishment of the facts involved; contribute to the establishment of the facts involved;
d) the undertaking ends its involvement in the suspected infringement d) the undertaking ends its involvement in the suspected infringement
no later than the time at which it submits its request for immunity no later than the time at which it submits its request for immunity
from fines to the Competition Council; from fines to the Competition Council;
e) the undertaking did not take steps to coerce other undertakings to e) the undertaking did not take steps to coerce other undertakings to
participate in the infringement. participate in the infringement.
12) In order to qualify for immunity from fines the undertaking having 12) In order to qualify for immunity from fines the undertaking having
exposed its participation in a cartel and having submitted evidence exposed its participation in a cartel and having submitted evidence
that proves the existence of this cartel will not be able to dispute that proves the existence of this cartel will not be able to dispute
the facts set out in its submitted request. the facts set out in its submitted request.
C. REDUCTION OF A FINE C. REDUCTION OF A FINE
13° Undertakings that do not meet the conditions under section B may 13° Undertakings that do not meet the conditions under section B may
be eligible to benefit from a reduction of any fine that would be eligible to benefit from a reduction of any fine that would
otherwise have been imposed if : otherwise have been imposed if :
a) the undertaking provides evidence of the suspected infringement a) the undertaking provides evidence of the suspected infringement
which represents significant added value with respect to the evidence which represents significant added value with respect to the evidence
already in the possession of the Belgian competition authorities; already in the possession of the Belgian competition authorities;
b) the undertaking ends its involvement in the suspected infringement b) the undertaking ends its involvement in the suspected infringement
no later than the time at which it submits its request for a reduction no later than the time at which it submits its request for a reduction
of fines to the Competition Council; of fines to the Competition Council;
c) the undertaking fully cooperates with the Belgian competition c) the undertaking fully cooperates with the Belgian competition
authorities on a continuous basis and expeditiously throughout the authorities on a continuous basis and expeditiously throughout the
procedure and provides them with all evidence that comes into its procedure and provides them with all evidence that comes into its
possession or is available to it relating to the suspected possession or is available to it relating to the suspected
infringement. In particular, it remains at their disposal to answer infringement. In particular, it remains at their disposal to answer
swiftly any request that may contribute to the establishment of the swiftly any request that may contribute to the establishment of the
facts involved. facts involved.
14) In order to qualify for a reduction of fines, the undertaking 14) In order to qualify for a reduction of fines, the undertaking
having exposed its participation in a cartel and having submitted having exposed its participation in a cartel and having submitted
evidence that proves the existence of this cartel will not be able to evidence that proves the existence of this cartel will not be able to
dispute the facts set out in its submitted request. dispute the facts set out in its submitted request.
15) The concept of « added value » refers to the extent to which the 15) The concept of « added value » refers to the extent to which the
evidence provided strengthens, by its very nature and/or its level of evidence provided strengthens, by its very nature and/or its level of
detail, the Belgian authorities' ability to prove the facts in detail, the Belgian authorities' ability to prove the facts in
question. question.
16) In any decision adopted at the end of the procedure, the 16) In any decision adopted at the end of the procedure, the
Competition Council will determine, notably on the basis of the Competition Council will determine, notably on the basis of the
elements set out in the examiner's investigation report relating to elements set out in the examiner's investigation report relating to
the conditions imposed for the granting of a reduction of fines : the conditions imposed for the granting of a reduction of fines :
a) whether the evidence provided by an undertaking represented a) whether the evidence provided by an undertaking represented
significant added value with respect to the evidence in the significant added value with respect to the evidence in the
competition authorities' possession at that time; competition authorities' possession at that time;
b) the level of reduction of the fine an undertaking will benefit from b) the level of reduction of the fine an undertaking will benefit from
relative to the fine which would otherwise have been imposed by the relative to the fine which would otherwise have been imposed by the
Competition Council, as follows. For the : Competition Council, as follows. For the :
- first undertaking to meet the conditions under point 13 : a - first undertaking to meet the conditions under point 13 : a
reduction of from 30 to 50 %; reduction of from 30 to 50 %;
- second undertaking to meet the conditions under point 13 : a - second undertaking to meet the conditions under point 13 : a
reduction of from 20 to 30 %; reduction of from 20 to 30 %;
- subsequent undertakings that meet the conditions under point 13 : a - subsequent undertakings that meet the conditions under point 13 : a
reduction of from 5 to 20 %. reduction of from 5 to 20 %.
If, at any stage of the procedure, one of the requirements under If, at any stage of the procedure, one of the requirements under
sections B or C is not met, the undertaking involved may loose any sections B or C is not met, the undertaking involved may loose any
favourable treatment set out therein. It will however still be able to favourable treatment set out therein. It will however still be able to
benefit from a reduction of a fine of from 5 to 15%, provided that it benefit from a reduction of a fine of from 5 to 15%, provided that it
does not dispute the facts revealed by the evidence that it has does not dispute the facts revealed by the evidence that it has
submitted. submitted.
In addition, if an undertaking provides evidence relating to facts In addition, if an undertaking provides evidence relating to facts
previously unknown to the Belgian competition authorities which have a previously unknown to the Belgian competition authorities which have a
direct bearing on the gravity or duration of the suspected cartel, the direct bearing on the gravity or duration of the suspected cartel, the
Competition Council will not take these elements into account when Competition Council will not take these elements into account when
setting any fine to be imposed on the undertaking which provided this setting any fine to be imposed on the undertaking which provided this
evidence. evidence.
D. PROCEDURE D. PROCEDURE
17) An undertaking wishing to benefit from immunity from a fine or a 17) An undertaking wishing to benefit from immunity from a fine or a
reduction of a fine should file a written application with the reduction of a fine should file a written application with the
Competition Council and simultaneously provide it with all evidence Competition Council and simultaneously provide it with all evidence
that is already available to it relating to the suspected that is already available to it relating to the suspected
infringement. It should also submit a copy of the application and of infringement. It should also submit a copy of the application and of
the evidence in question to the Corps of Examiners. The request will the evidence in question to the Corps of Examiners. The request will
be deemed submitted after the Competition Council and the Corps of be deemed submitted after the Competition Council and the Corps of
Examiners have received those documents. Examiners have received those documents.
18) The undertaking will receive an acknowledgement of receipt of the 18) The undertaking will receive an acknowledgement of receipt of the
application for immunity from fines or a reduction of fines and of the application for immunity from fines or a reduction of fines and of the
submitted evidence from the Competition Council and the Corps of submitted evidence from the Competition Council and the Corps of
Examiners. The acknowledgement of receipt mentions the date and time Examiners. The acknowledgement of receipt mentions the date and time
of submission of the request as well as the conditions required by the of submission of the request as well as the conditions required by the
present notice to benefit from immunity from fines or a reduction of present notice to benefit from immunity from fines or a reduction of
fines. fines.
19) If the conditions for the granting of immunity are not met, the 19) If the conditions for the granting of immunity are not met, the
Corps of Examiners will immediately inform the undertaking thereof. Corps of Examiners will immediately inform the undertaking thereof.
20) If an undertaking does not meet the conditions for benefiting from 20) If an undertaking does not meet the conditions for benefiting from
immunity from fines referred to in point 11, its request will immunity from fines referred to in point 11, its request will
automatically be converted into a request for reduction of fines. The automatically be converted into a request for reduction of fines. The
latter will be deemed submitted on the date of the request for latter will be deemed submitted on the date of the request for
immunity. immunity.
21) The examiner will indicate in its investigation report the 21) The examiner will indicate in its investigation report the
elements that are useful to the Competition Council to take a decision elements that are useful to the Competition Council to take a decision
with regard to the undertaking(s) having requested immunity from fines with regard to the undertaking(s) having requested immunity from fines
or a reduction of fines. or a reduction of fines.
22) If, at the end of the procedure, the undertaking meets the 22) If, at the end of the procedure, the undertaking meets the
conditions mentioned in the present joint notice, the Competition conditions mentioned in the present joint notice, the Competition
Council will grant it immunity from fines or a reduction of fines. Council will grant it immunity from fines or a reduction of fines.
E. GENERAL CONSIDERATIONS E. GENERAL CONSIDERATIONS
23) The undertaking having requested immunity from fines or reduction 23) The undertaking having requested immunity from fines or reduction
of fines commits itself to keeping its request secret until the of fines commits itself to keeping its request secret until the
investigation is closed. Any disclosure of information would in that investigation is closed. Any disclosure of information would in that
case be regarded as a lack of cooperation. case be regarded as a lack of cooperation.
24) The Competition Council is aware that this notice will create 24) The Competition Council is aware that this notice will create
legitimate expectations on which undertakings may rely when disclosing legitimate expectations on which undertakings may rely when disclosing
the existence of a cartel to the Council. In order to encourage the existence of a cartel to the Council. In order to encourage
undertakings to end existing illegal agreements, any application for a undertakings to end existing illegal agreements, any application for a
reduction of fines filed before 1 July 2004 and meeting the conditions reduction of fines filed before 1 July 2004 and meeting the conditions
under section C will, as a departure from point 16, b) of this notice, under section C will, as a departure from point 16, b) of this notice,
qualify for a reduction of a fine of 50%. qualify for a reduction of a fine of 50%.
25) The fact that an undertaking cooperated with the Belgian 25) The fact that an undertaking cooperated with the Belgian
competition authorities during the procedure will be indicated in any competition authorities during the procedure will be indicated in any
decision of the Competition Council, so as to explain the reason for decision of the Competition Council, so as to explain the reason for
the immunity or reduction of the fine. The fact that immunity or the immunity or reduction of the fine. The fact that immunity or
reduction in respect of fines is granted cannot protect an undertaking reduction in respect of fines is granted cannot protect an undertaking
from the civil law consequences of its participation in an from the civil law consequences of its participation in an
infringement of Article 81 of the EC Treaty and/or Article 2 APEC. infringement of Article 81 of the EC Treaty and/or Article 2 APEC.
26) The Competition Council generally considers that disclosure, at 26) The Competition Council generally considers that disclosure, at
any time, of documents received in the context of this notice would any time, of documents received in the context of this notice would
undermine the protection of the purpose of inspections and undermine the protection of the purpose of inspections and
investigations. investigations.
Any written statement or communication made vis-à-vis the competition Any written statement or communication made vis-à-vis the competition
authorities in relation to this notice forms part of the Competition authorities in relation to this notice forms part of the Competition
Council's file..It may not be disclosed or used for any other purpose Council's file..It may not be disclosed or used for any other purpose
than the enforcement of Article 81 of the EC Treaty and/or Article 2 than the enforcement of Article 81 of the EC Treaty and/or Article 2
APEC APEC
27) This joint notice was adopted on 30 march 2004 by the Competition 27) This joint notice was adopted on 30 march 2004 by the Competition
Council at its general meeting and by the corps of examiners. The Council at its general meeting and by the corps of examiners. The
joint notice is operational from the 5th working day following the joint notice is operational from the 5th working day following the
publication in the Belgian Bulletin of Acts, Orders and Decrees. publication in the Belgian Bulletin of Acts, Orders and Decrees.
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