On 1 September 2013, a new Belgian Competition Act entered into force. The new rules introduce significant procedural changes which are likely to lead to more efficient enforcement of competition law in Belgium.
What is new?
A simplified authority
The Belgian Competition Authority has been simplified to form a single administrative authority with both an investigative and decision-making arm. Under the old Competition Act, investigations were led by the Competition Prosecutors. This was the case for investigations into possible antitrust infringements and also for notified transactions, at least if they did not follow the simplified procedure. At the conclusion of their investigation, the Competition Prosecutors prepared a report for an administrative tribunal (the Competition Council) which decided on the existence of (and fines for) antitrust infringements or the approval of a transaction. The Competition Council has now been abolished and proceedings will take place as follows:
- At the conclusion of antitrust investigations, the Competition Prosecutors will in the future send a statement of objections to the companies (or associations) involved and, after receiving their response to it, submit a draft decision to a new body, the Competition College. After hearing the parties concerned once more, the College (composed of the president of the new authority and two persons appointed by him ad hoc) will decide on the matter.
- In merger cases, the Competition Prosecutors will simply submit a draft decision to the Competition College which, after hearing the parties concerned, will determine whether the transaction is permissible or not. Transactions which are notified under the simplified procedure will continue to be decided by the Prosecutors alone, but the review period for simplified mergers has been reduced to 15 working days.
The reform is aimed at speeding up the decision-making process of the authority. Therefore strict deadlines are foreseen for the steps in the antitrust proceedings. Furthermore, parties which are subject to an investigation will be required to submit all relevant documents in their defence during the Prosecutors' investigation and will no longer be allowed to submit new documents afterwards to the Competition College, unless the document constitutes factual evidence or responds to allegations which the undertaking (or association) was not aware of before. Appeals against decisions of the Competition College can be brought to the Brussels Court of Appeal (as was the case for decisions of the Competition Council).
The procedure for interim measures in respect of alleged antitrust infringements has been reformed in a number of ways. In order to speed up the process, third parties will be able to bring a request for interim measures directly before the Competition College. The Competition Prosecutors will no longer be required to prepare a preliminary assessment of the need for interim measures. On the other hand, the Competition Prosecutors will also be able to request interim measures ex officio (i.e. even in the absence of a request from a third party).
A settlement procedure along the lines of the procedure of the European Commission has been introduced. This procedure will be available to all types of antitrust cases, including dominance cases, and is not just limited to cartel investigations. Settlement can lead to a reduction in fine of 10%, and a further reduction is possible where companies commit to compensate the victims of the infringement.
The new competition law foresees that individuals who engage in negotiations or agreements with competitors to fix prices to customers, to limit production or sales, or to share markets can be personally fined up to EUR 10,000. Individuals will also be able to apply for leniency for such actions.
The Price Observatory, a price monitoring institution of the Ministry of Economy, will be empowered to report "problems concerning prices or margins, an abnormal price evolution or a structural market problem" to the new authority. Based on this report and after having heard the companies (or associations) concerned, the Competition College can take temporary measures for a period of six months to avoid serious, direct and irreparable harm to undertakings or consumers or the general economic interest.
Companies active in Belgium now face a tougher competition law enforcement landscape. The new rules provide a timely moment for businesses with operations in Belgium to remind employees of the importance of competition law compliance, and to verify that competition law compliance procedures are as effective as possible.