On 27 January 2015, the Belgian Competition Authority published a notice concerning the informal opinions of its President in order to give guidance on the conditions that may allow the President to issue such informal opinions and on the way to proceed.
In accordance with Article IV.20, § 1 of the Code of Economic Law, “Protection of Competition”, the President of the Belgian Competition Authority has to deal with informal questions in relation to the application of competition law when there is no formal investigation pending. He will continue to proactively assist companies or associations to promote an efficient functioning of the market by clarifying the interpretation of competition law when it is necessary and possible.
The notice only applies to agreements and restrictive practices and does not concern mergers.
First, the notice defines the criteria for obtaining such an informal opinion. It may be introduced only if the practice or the agreement has not yet been implemented, but the question must not be purely hypothetical. The question must not have been the subject of a case before the European Commission, the Competition Prosecutor or the Competition College. It must therefore be a new question of law which remains unanswered by the Belgian Competition Authority or in regulations or by the Belgian or European jurisprudence.
The request for an informal opinion must contain all the relevant information in order to enable the President to answer it. Finally, the question must present an economic or a societal interest which is sufficiently significant.
Once such a request for an informal opinion has been made, the President will submit it to the Competition Prosecutor, who will verify whether or not the agreement or practice has yet been implemented and whether or not a similar question has yet been answered by the European Commission, the Competition Prosecutor or the Competition College.
The President will explain the interpretation of competition law in a letter, which will constitute the informal opinion.
Informal opinions will be published on the Belgian Competition Authority website.
Such an informal opinion will not prevent the Competition Prosecutor from opening an investigation at a later stage. If the practice or agreement has been implemented, the Competition Prosecutor will decide whether or not an investigation should be opened.
For more information, please see the notice on informal opinions of the President of the Belgian Competition Authority.