Context

The enforcement of Articles 101 and 102 TFEU has for a long time been carried out exclusively by the European Commission. Under Council Regulation (EC) No 1/2003, the Member States’ national competition authorities (NCAs) carry out the public enforcement of Articles 101 and 102 TFEU in parallel with the Commission. Together, the NCAs and the European Commission form the “European Competition Network” (“ECN”) and in close collaboration they apply the EU competition rules. However, differences have existed with various NCAs’ application of Articles 101 and 102 TFEU regarding the various NCAs’ powers and the procedures and penalties applied. The ECN+ Directive aims to empower the NCAs to become more effective enforcers of competition law, providing them with the necessary resources and independence guarantees and to ensure the proper functioning of the internal market. The Belgian legislator has been late in transposing the ECN+ Directive, which was due to happen by 4 February 2021, but has also taken the opportunity of this change to the Belgian Competition Act (inserted in Book IV Code of Economic Law) to also update and clarify many other points.

The main amendments to be noted in merger control and antitrust procedures are the following:

1. Introduction of a filing fee in merger control:Since 17 March 2022, the notifying parties must pay a filing fee of 17,450 EUR for a simplified merger procedure and a filing fee of 52,350 EUR for a regular merger procedure. These amounts will be automatically adjusted as from 2023 in line with the consumer price index and will contribute to the significantly increased budget and resources granted to the Belgian Competition Authority (“BCA”).

2. Fines of up to 1% of the worldwide annual turnover in case of failure to notify a concentration: If a concentration fulfills the Belgian merger control thresholds, then it must be notified to the BCA and cannot be implemented until the BCA’s clearance decision (“standstill obligation”). The Belgian Competition Act already set out the right to impose a fine of up to 10% of the worldwide annual turnover of the undertakings for a breach of the standstill obligation. The amended Competition Act additionally introduces the right to impose a fine of up to 1% of the worldwide annual turnover of the undertakings for a violation of the notification obligation.

3. Immunity from criminal liability in the case of bid-rigging for leniency applicants:The act amending the Competition Act also modifies Article 314 of the Belgian Criminal Code that now permits granting undertakings that successfully apply for leniency to the BCA in the case of bid-rigging to also receive an immunity from criminal liability for the same facts.

4. Fines for not respecting interim measures:The BCA can now also impose regular fines if interim measures are not respected and so it not restricted to only imposing periodic penalty payments.

5. Solidarity for members of associations to pay the fine of the association: Every member of an association that has breached competition law can be requested to pay the whole fine imposed on the association by the BCA (limited to a maximum of 10% of a member’s annual worldwide turnover in the case of a fine for a breach of competition law and 1% of its annual worldwide turnover in the case of fines for procedural breaches). An exception can be made for a member proving that it did not implement the association’s infringing decision, was not aware of it or publicly distanced itself from the infringing decision prior to the opening of the investigation.

6. Clarification and insertion in the Competition Act of the rules on leniency applications:The rules on leniency applications from the Leniency Guidelines are inserted in the amended Competition Act and have been slightly updated. Something also new is that the immunity and leniency applications and markers can be submitted in Dutch or French or German (independent of the region in which the company has its registered seat) or any other EU language agreed with the Auditor.

7. Exclusion of evidence obtained in an irregular way is now more difficult: The Belgian Supreme Court’s “Antigoon” case law regarding the admissibility of unlawful evidence in (quasi) criminal cases now also applies to competition law investigations, which makes it more difficult to strike out evidence that has been collected in an irregular way. The irregularly-obtained evidence can only be declared inadmissible if (1) the concerned formal requirements are punished by a nullity; or (2) the irregularity affects the reliability of the evidence; or (3) the use of the evidence would be contrary to the right to a fair trial.

8. Voluntary disclosure procedure of confidential documents:The Competition Act now explicitly provides for the right for a voluntary disclosure procedure between the parties under investigation in which they can voluntarily disclose confidential documents.

Conclusion

The Belgian Competition Act was amended to implement the ECN+ Directive, and at the same time has been updated to take account of developments in case-law and to solve procedural issues that had arisen in legal proceedings. The increase in the BCA’s budget and resources, the various procedural improvements and the amendments to ensure an effective cooperation within the ECN, shall allow a more effective enforcement of the EU and Belgian competition laws.