On 17 March 2022, the amendments that transposed the European Competition Network plus (ECN+) Directive into the Competition Act entered into force in Belgium. The amendments introduce merger filing fees, fines for failure to notify mergers and a number of procedural changes that allow for more efficient enforcement actions and improved cooperation within the ECN Network.
For a long time, the European Commission (EC) has exclusively enforced articles 101 and 102 of Treaty on the Functioning of the European Union (TFEU). Under Council Regulation (EC) No. 1/2003, member states' national competition authorities (NCAs) carry out the public enforcement of articles 101 and 102 of the TFEU in parallel with the EC. Together, the NCAs and the EC form the "European Competition Network", a collaborative entity that applies EU competition rules across all member states. However, differences have emerged in the ways that various NCAs apply the procedures and penalties under the two TFEU articles. The ECN+ Directive aims to empower 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 transposition of the ECN+ Directive was delayed in Belgium; it was due to happen by 4 February 2021. However, this has provided the opportunity to update and clarify many other points.
The key amendments to merger control and antitrust procedures are as follows:
- introduction of a filing fee in merger control – since 17 March 2022, the notifying parties must pay a filing fee of €17,450 for a simplified merger procedure and a filing fee of €52,350 for a regular merger procedure. These amounts will be automatically adjusted from 2023 in line with the consumer price index and they will contribute to the significantly increased budget and resources granted to the Belgian Competition Authority (BCA);
- fines of up to 1% of the worldwide annual turnover in case of failure to notify a concentration – if a concentration fulfils the Belgian merger control thresholds, it must be notified to the BCA and cannot be implemented until the BCA's clearance decision (ie, a standstill obligation). The 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 introduces the additional right to impose a fine of up to 1% of the worldwide annual turnover of the undertakings for violating the notification obligation;
- immunity from criminal liability in the case of bid-rigging for leniency applicants – the act that amends the Competition Act also modifies article 314 of the Criminal Code, which now permits granting undertakings that successfully apply for leniency to the BCA in the case of bid-rigging to also receive immunity from criminal liability for the same facts;
- fines for not respecting interim measures – the BCA can now also impose regular fines if interim measures are not respected, and it is no longer restricted to imposing only periodic penalty payments;
- 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 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 who can prove that they did not implement the association's infringing decision, were not aware of it or publicly distanced themselves from the infringing decision prior to the opening of the investigation;
- clarification and insertion of the rules on leniency applications in the Competition Act – the rules on leniency applications from the leniency guidelines are inserted in the amended Competition Act and have been slightly updated. Further, the immunity and leniency applications and markers can also be submitted in Dutch, French or German (independent of the region in which the company has its registered seat) or any other EU language that has been agreed with the auditor;
- the exclusion of evidence obtained in an irregular way is now more difficult – the Supreme Court's Antigone-theory 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:
- the concerned formal requirements are punished by a nullity;
- the irregularity affects the reliability of the evidence; or
- the use of the evidence would be contrary to the right to a fair trial; and
- 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.
The Competition Act has been amended to implement the ECN+ Directive and updated to consider developments in case law and to solve procedural issues that arise 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 will allow for a more effective enforcement of EU competition laws in Belgium.
For further information on this topic please contact Carmen Verdonck or Amaury Cousin at ALTIUS by telephone (+32 2 426 1414) or email ([email protected] or [email protected]). The ALTIUS website can be accessed at www.altius.com.