1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
  2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
  4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
  5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
  6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
  7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
  8. Are there legal developments on the horizon in relation to CCPs?

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Belgium
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1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?

The Belgian Competition Authority (“BCA”) has not published any generic or general guidelines on CCPs.

However, on 4 July 2016 the BCA published a practical guide on competition law for SMEs to help them to assimilate those concepts, risks and best practices. The guide includes tips for setting up a CCP. According to the BCA’s guide, the key components of an effective CCP for this category of undertaking are:

  • a risk analysis;
  • a code of conduct;
  • a compliance officer;
  • training; and
  • cooperation with the BCA.

2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?

The BCA has taken into consideration a CCP in only one case, which relates to an infringement of Article 101 of the TFEU and Article IV.52, §1, 2° of the Belgian Code of Economic Law regarding a Price Maintenance Agreement:

Decision n°ABC-2021-P/K-09 of 6 May 2021: A complaint was made to the BCA about Caudalie, an undertaking active in the manufacturing and distribution of cosmetic products. The complaint concerned the violation of competition law in a Price Maintenance Agreement between Caudalie and its distributors. During the procedure, Caudalie proposed several commitments to reduce the amount of the fine, one of which was the adoption of a CCP - but was not successful. 

3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?

In its very limited practice, the BCA does not explain the arguments considered in relation to a CCP. However, the BCA, in its guide on competition law for SMEs, argues that, in the event of an infringement, CCPs are not a mitigating factor for the BCA.

Usually, the BCA only assesses the behaviour of undertakings and not the effective role of management or employees. However, since 2013, natural persons that set up and/or participate in a cartel may be fined by up to EUR 10,000. In practice, no fine has yet been imposed and, in most cases, the initiators and participants involved in a cartel present leniency applications to avoid such financial risks.

In Decision n°ABC-2017-I/0-16-AUD of 2 May 2017 on a collusion in public procurement procedures organized by Infrabel, the BCA highlighted the excessive transparency provided by Infrabel’s employees in the procurement proceedings. Indeed, they had provided the applicants with detailed and sensitive information about the public procurement projects that went beyond normal public procurement requirements. Such transparency had allowed the applicants to allocate among themselves the projects they had been selected for in the framework agreement. Although Infrabel’s employees were not sanctioned, their behaviour was taken into consideration in setting the fines to be imposed on the members of the cartel as it was qualified as a mitigating circumstance.

5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?

No. In its guide on competition law for SMEs, the BCA states that, in the event of an infringement, CCPs are not a mitigating factor for the BCA.

A commitment to adopt a CCP may be proposed to terminate a procedure at its preliminary stage in the context of an alleged abuse of dominance, for instance. 

6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?

Although a candidate could theoretically put forward the adoption or updating of a CCP as evidence of self-cleaning to avoid a risk of exclusion in case of collusion in a public procurement, we are not aware of such practice in Belgium.

Usually, when public buyers notice a potential collusion in a public procurement they organize, they terminate the procedure and organize a new one, or they contact the BCA for assistance in detecting an infringement of competition law. 

Since the Code of Economic Law entered into force in 2013, and probably because of the risk of fines being imposed on natural persons for their participation in a cartel, we have noticed a greater awareness of risks linked to competition law and of the setting up of CCPs in Belgium.  

No. CCPs were not included in the BCA’s priorities note published in June 2024.