Legislation and jurisdictionRelevant legislation and regulators
What is the relevant legislation and who enforces it?
The relevant legislation is included in Book IV of the Code of Economic Law and the Royal Decree of 30 August 2013 on the notification of concentrations. On 25 April 2019, Parliament adopted a new law by which it replaced Book IV of the Code of Economic Law in full (see question 35) resulting in a new numbering of its articles. The decisions mentioned in this chapter shall be read as referring to the corresponding provisions of the new text.
The Belgian competition authority (the Authority) is responsible for the enforcement of the Competition Act. The Authority is a single and independent administrative body and is composed of a president, the Competition College (presided by the President), the Investigation and Prosecution Service (headed by the Competition Prosecutor General) and a management committee. The Investigation and Prosecution Service conducts the investigations (both in merger and conduct-related cases) and presents its cases to the Competition College, which has the decision-making power. The members of the Investigation and Prosecution Service can also issue decisions regarding simplified merger filings.Scope of legislation
What kinds of mergers are caught?
The definition of a concentration in Book IV of the Code of Economic Law is similar to that under the EU Merger Regulation (EUMR). A concentration occurs where:
- two previously independent undertakings merge;
- an undertaking or a person already controlling an undertaking acquires control over the whole or part of another undertaking; or
- two or more undertakings form a ‘full-function’ joint venture (see question 3).
What types of joint ventures are caught?
The merger control provisions of Book IV of the Code of Economic Law apply only to ‘full-function’ joint ventures; that is, those that perform ‘on a lasting basis all the functions of an autonomous economic entity’. However, to the extent that a full-function joint venture between undertakings that remain independent could lead to coordination of the behaviour of the parent companies, such coordination will be assessed under the criteria set out in article IV.1 of the Code of Economic Law (ie, the Belgian equivalent to article 101 of the Treaty on the Functioning of the European Union (TFEU)).
Is there a definition of ‘control’ and are minority and other interests less than control caught?
Book IV of the Code of Economic Law defines ‘control’ fairly broadly, so that the acquisition of a minority shareholding can be caught in certain circumstances. As is the case under EU law, control means the possibility of exercising decisive influence on an undertaking, whether by contract or otherwise. For example, in cases where outright legal control is not acquired, rights attaching to use or ownership of assets, shareholders’ agreements and board representation will be considered. In its Belgacom SA/Vodafone Belgium SA/Belgacom Mobile SA decision of 30 October 2006, the Authority confirmed that joint control may exist where minority shareholders have additional rights that allow them to veto decisions that are essential for the strategic commercial behaviour of the joint venture. More recently, the Authority found in its Picanol NV/Tessenderlo Chemie NV decision of 21 October 2013 that Picanol NV, by purchasing 27.6 per cent of the shares in Tessenderlo Chemie NV, acquired de facto control over Tessenderlo Chemie NV because the remaining shares were dispersed among a large number of shareholders.Thresholds, triggers and approvals
What are the jurisdictional thresholds for notification and are there circumstances in which transactions falling below these thresholds may be investigated?
Concentrations must be notified if the parties have an aggregate Belgian turnover exceeding €100 million and at least two of the parties have an individual Belgian turnover of at least €40 million. Under the Code of Economic Law, Belgian turnover is the total turnover during the previous financial year attributable to the Belgian national market and exports from Belgium. The Authority seeks to align its approach regarding the geographic allocation of turnover with the practice of the European Commission. The Belgian rules for the calculation of turnover of credit institutions and other financial institutions are the same as the EUMR rules (see article IV.8 of the Code of Economic Law).
The Authority confirmed in a decision on interim measures (Alken-Maes NV/AB Inbev NV) that it is competent to assess whether non-notifiable mergers constitute an abuse of a dominant position insofar as the potential anticompetitive effects go beyond those directly linked to the bringing about of the merger.
Book IV of the Code of Economic Law does not apply to concentrations falling under the EUMR (with exceptions, provided for in the EUMR, as set out in the European Union chapter).
Is the filing mandatory or voluntary? If mandatory, do any exceptions exist?
Filing is mandatory for concentrations that meet the turnover thresholds. Concentrations must be notified to the Competition Prosecutor General prior to completion of the transaction. There are no exceptions to this rule.
Do foreign-to-foreign mergers have to be notified and is there a local effects or nexus test?
Foreign-to-foreign mergers must be notified in Belgium where the turnover thresholds are met (see question 5), regardless of the location or nationality of the parties. Many foreign-to-foreign mergers may therefore trigger an obligation to file where the parties have sales in Belgium, even if they have no Belgian-based assets.
Are there also rules on foreign investment, special sectors or other relevant approvals?
There are special rules applicable to investment in certain sectors, including banking, insurance and media, but these generally apply irrespective of whether the investor is foreign. Also, the works council or employees’ organisation of a Belgian company must be informed in advance of certain structural or other changes that will affect the company, including mergers and takeovers. In specific circumstances, consultation with the works council or union representatives concerning employment prospects and the organisation of work is mandatory.
Public undertakings and undertakings to which the public authorities have granted exclusive or specific rights are subject to the same rules as private undertakings insofar as this does not undermine their assigned role.
On 5 December 2018, the Flemish Government adopted a new decree establishing a type of ‘emergency brake’ procedure for strategic investments into government-owned entities. These new rules allow the Flemish Government to annul or declare void any foreign acquisition that would threaten the strategic interests or the independence of the Flemish Region or Flemish Community or both.
Notification and clearance timetableFiling formalities
What are the deadlines for filing? Are there sanctions for not filing and are they applied in practice?
A concentration must be notified prior to its implementation. Draft agreements may be notified provided the parties explicitly declare that they aim to conclude a final agreement that does not differ from the draft agreement on any of the points relevant for a competition law assessment. The basic outline of the concentration, as well as related restrictions (such as a non-compete covenant) should be contained in the draft agreement. If this is not the case, or if the Competition College finds that the final agreement differs substantially from the notified draft on competition law issues, it may reject the first notification, in which case a second notification may be required, once the final agreement has been signed. This would result in delay for the review, and duplication of time, effort and costs.
Where the Competition College finds that the merging parties have failed to notify a concentration prior to its implementation, it may impose fines up to 1 per cent of the total turnover in the preceding financial year.
Which parties are responsible for filing and are filing fees required?
The notification must be made jointly by the parties if the merger creates a new undertaking, and by the parties or acquirers jointly in the case of acquisition of joint control. In the case of acquisition of sole control, the acquirer alone must notify.
No filing fees are required.
What are the waiting periods and does implementation of the transaction have to be suspended prior to clearance?
As is the case under the EUMR, concentrations may not be implemented before clearance.
This suspension obligation does not prevent the implementation of a public bid or of a series of transactions in securities, provided that the concentration is notified without delay and the acquirer does not exercise the voting rights attached to the securities in question or does so only to maintain the full value of its investments, and on the basis of a derogation granted by the President.
At the request of the parties, the President can grant an exemption of the suspension obligation. This happened for the first time in 2008 when the Belgian state, through the Federal Participation and Investment Company, acquired a stake in Fortis and requested a derogation from the suspension obligation to implement a transaction aimed at rescuing a failing bank where further delay would have compromised the survival of the bank. In 2011, the Federal Participation and Investment Company again applied for and obtained a derogation from the suspension obligation in relation to its acquisition of Dexia Bank Belgium, after the Dexia Group got into financial difficulties.
The President furthermore granted exemptions to the suspension obligation in 2013, in the context of the initial public offering (IPO) of Bpost, on the basis of the urgency in light of the IPO and the fact that the transaction only required a simplified notification and did not entail any prima facie competition concerns; and in 2015 in the context of the acquisition by Cordeel Group NV of Imtech Belgium Holding NV and Imtech België NV, based on the need to safeguard the business continuity of Imtech - a company in bankruptcy proceedings.Pre-clearance closing
What are the possible sanctions involved in closing or integrating the activities of the merging businesses before clearance and are they applied in practice?
If a transaction is properly notified but implemented before clearance has been obtained (gun jumping), the Competition College may impose fines not exceeding 10 per cent of total turnover, and in addition periodic penalty payments not exceeding 5 per cent of the average daily turnover in the preceding financial year per day. These sanctions can be imposed even if the concentration is ultimately cleared.
In 2003 the Competition Council (now the Competition College) imposed a €1 million fine for breach of the suspension obligation under the Competition Act of 1991, but this decision was overturned by the Brussels Court of Appeal. In 2015, the Authority imposed a symbolic fine of €5,000 on Cordeel Group NV for closing its acquisition of Imtech Belgium Holding NV and Imtech België NV before obtaining merger clearance.
Are sanctions applied in cases involving closing before clearance in foreign-to-foreign mergers?
The sanctions for gun jumping, outlined in questions 9 and 12, equally apply in the case of a foreign-to-foreign transaction.
What solutions might be acceptable to permit closing before clearance in a foreign-to-foreign merger?
Foreign-to-foreign mergers cannot be closed outside Belgium without breaching the suspension obligation, unless the President grants a derogation (see question 11 in relation to public takeover bids).Public takeovers
Are there any special merger control rules applicable to public takeover bids?
No, except that in this case the duty to notify rests with the bidder only and the suspension obligation is somewhat different (see question 11).Documentation
What is the level of detail required in the preparation of a filing, and are there sanctions for supplying wrong or missing information?
The filing requirement is onerous. A considerable amount of detailed information must be provided, including information concerning the parties, the relevant market or markets, details of the transaction and the personal and financial links of the parties with other companies. The information must be provided in accordance with Form CONC C/C. Derogations as to the amount of information to be provided may be obtained, although these are not binding on the Competition College. The form must be completed in a Belgian official language (French or Dutch), depending on where the parties have their principal seat of business. Where the merger agreement is signed between non-Belgian entities, the parties are free to choose the language of the filing (in practice, French or Dutch). Supporting documents must be submitted in their original language. Where this is not a Belgian official language or English, a translation in the language of the proceedings may be requested. Notifying parties should indicate in their notification which information constitutes business secrets in order for such information to be treated as strictly confidential.
Filling in the form and assembling the supporting documents can take up to a month, depending on the complexity of the issues involved and the availability of the information required. Certain mergers that are unproblematic from a competition law perspective can be notified under the simplified procedure (see question 18). Under this procedure, the information provision burden is slightly reduced, although significant amounts of information must still be provided.
Notifying parties may be fined for providing incorrect or incomplete information. The Authority has in the past fined notifying parties for the provision of incomplete information. For example, in 2012, the Authority fined Belgacom €75,000 for providing incomplete information in response to a request for information in the framework of its acquisition of Wireless Technologies BVBA. In 2015, it imposed a €50,000 fine on Sanoma for obstructing the review of the acquisition by De Persgroep Publishing NV of magazines Humo NV, Story, Teve-blad and Vitaya by failing to provide certain information in response to a request.Investigation phases and timetable
What are the typical steps and different phases of the investigation?
A distinction can be made between simplified and non-simplified cases. Simplified cases are reviewed and cleared on an expedited timetable (see question 18). Non-simplified cases can be dealt with in first phase or, if they raise serious doubts, may go into an in-depth second phase investigation.
For both simplified and non-simplified cases, notifying parties are required to engage in pre-notification discussions with the Authority, on the basis of a draft notification. Upon notification, the Competition Prosecutor General starts the investigation and appoints one of the Prosecutors who will be in charge of coordinating the investigation. The Prosecutor appointed by the Prosecutor General can request additional information from the parties, both during the pre-notification discussions and after formal notification. The Prosecutors usually conduct their investigation by consulting online databases and contacting suppliers, customers and competitors.
In non-simplified cases, the Prosecutor is required to submit a draft decision to the President, with copy to the notifying party or parties who have the right to respond in writing. Depending on the complexity of the transaction, if the Prosecutor considers that the transaction is likely to lead to a significant impediment to effective competition, it will communicate its objections to the parties at least five working days before the submission of the draft decision to the President. The parties can submit commitments during this period and the Prosecutor will consider the commitments in the draft decision. Under the normal procedure, a formal hearing before the Competition College is held, at least 10 working days after the Prosecutor submits the draft decision.
What is the statutory timetable for clearance? Can it be speeded up?
Where the conditions for the simplified procedure are met and the concentration does not raise any competition concerns, a member of the Investigation and Prosecution Service will confirm this in a written decision to the notifying parties within 15 working days. This decision has the legal value of a Competition College clearance decision. In 2017, the majority of simplified decisions were issued before the end of the statutory 15 working day review period.
In non-simplified cases, the Competition College must take a decision no later than 40 working days after notification (first-phase decision), failing which the transaction is deemed to be cleared. The Competition College may decide to initiate second-phase proceedings if the concentration raises serious doubts as to its effect on competition. A further 60 working days’ investigation is then carried out, at the end of which the Competition College must reach its final decision (second-phase decision). There is no possibility of speeding up this process, but the time limits may be prolonged at the request of the parties. If the parties offer commitments, the first phase will be increased by 15 working days and the second phase by 20 working days. A proposal to modify Book IV of the Code of Economic Law was adopted by Parliament on 25 April 2018 (see question 35). The modifications will leave the time periods unchanged. However, the Prosecutor will have an extended deadline to submit its comments to the Competition College when the parties offer remedies. The new rules also introduce the possibility for the Prosecutor to stop the clock at all stages of the proceedings.
Substantive assessmentSubstantive test
What is the substantive test for clearance?
The substantive test in Belgian merger control is aligned with the EUMR as it provides that concentrations that do not ‘significantly impede effective competition’ in the Belgian market or in a substantial part of it must be cleared, while concentrations that would significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position, must be blocked (the SIEC test).
In its assessment, the Competition College must take into account factors such as the effectiveness of actual or potential competition (whether at a national or international level) as well as barriers to entry, the bargaining power of customers and suppliers, the maturity of the market, the economic and technical level of the market and alternative sources of supply.
The Competition College must clear concentrations where the parties’ share on the relevant market in Belgium does not exceed 25 per cent.
Is there a special substantive test for joint ventures?
Book IV of the Code of Economic Law does not provide for a special substantive test for the joint ventures it governs (ie, full-function joint ventures). However, to the extent that full-function joint ventures between undertakings that remain independent could lead to coordination of the behaviour of the parent companies, such coordination will be assessed under the criteria set out in article IV.1 of the Code of Economic Law, which is the Belgian equivalent to article 101 TFEU (see question 3).Theories of harm
What are the ‘theories of harm’ that the authorities will investigate?
Under the SIEC test, the Authority can examine the various types of harm that result from a merger (single dominance, unilateral effects, coordinated effects, conglomerate effects and vertical foreclosure). So far, its focus has been mainly on single dominance based primarily on a market share analysis. However, the Authority increasingly takes an economic approach based on the effects of the merger on competition, looking beyond market shares. For example, it recognises that market shares do not correctly reflect the dynamic process of bidding markets and heterogeneous, two-sided markets and that the actual effect of the merger on the competitive dynamics should be examined.Non-competition issues
To what extent are non-competition issues relevant in the review process?
The Authority assesses concentrations purely based on competition criteria. These competition criteria may be interpreted broadly. For example, in the past the Authority considered the plurality of the media as a factor in its assessment of mergers in the media sector. The powers of the Council of Ministers to clear a transaction blocked by the Competition Council on the basis of ‘general interest’ considerations have been abolished as of 2013.Economic efficiencies
To what extent does the authority take into account economic efficiencies in the review process?
See question 19.
Remedies and ancillary restraintsRegulatory powers
What powers do the authorities have to prohibit or otherwise interfere with a transaction?
The Competition College may clear a transaction subject to conditions, as explained below. If the notifying party fails to provide an acceptable remedy to address the Authority’s competition concerns, the Authority may prohibit the transaction.Remedies and conditions
Is it possible to remedy competition issues, for example by giving divestment undertakings or behavioural remedies?
Yes. The Competition College may make a clearance decision subject to structural or behavioural conditions, such as divestiture of assets or an undertaking not to open new outlets in Belgium for a given period of time. The parties can address competition concerns by modifying the terms of the transaction, including by giving divestment undertakings, in the course of both first-phase and second-phase proceedings.
The Authority has recently approved several concentrations subject to structural remedies. In 2018, the Authority approved the acquisition by Volvo Group Belgium NV of authorised retailer Kant NV subject to the closure of one of Volvo’s points of sale and the authorisation of another retailer. In 2017, the Authority conditionally approved the acquisition by McKesson of Belmedis et al, subject to the divestment of one of their depots in the Ghent area. In 2016, the Authority made the merger between supermarket chains Delhaize NV and Koninklijke Ahold NV conditional upon the divestment of up to 23 stores and cleared the acquisition of Utopolis NV by Kinepolis NV subject to the divestment of two out of the four Utopolis cinemas.
In multiple cases, the Authority has proven to be receptive to behavioural commitments rather than relying solely on structural remedies to address concerns. In 2017, the Authority approved the acquisition by telecommunications provider Telenet of cable operator Coditel subject to Telenet granting a third party (Orange) access to the Coditel network based on defined technical terms and price setting mechanism and not to offer any new quad-play services in the Coditel area during a certain period. In 2016, the Authority made the acquisition of AMP and LS Distribution Benelux by postal incumbent bpost, active in press and small parcel distribution, press subscription management services and operation of retail press outlets, subject to behavioural remedies aimed at preserving competition between different distribution systems and guaranteeing the equal treatment and non-discrimination of all the points-of-sale. In 2014, the Competition College conditionally cleared the acquisition by telecoms company Tecteo of EDA and Avenir Advertisting, active in the daily press market through the newspapers L’Avenir and Proximag. To remedy the Authority’s concerns, TECTEO committed to a number of behavioural remedies to prevent it from gaining access to competitors’ commercially sensitive information. In 2015, the Authority conditionally approved the acquisition by media company De Persgroep Publishing NV of several Belgian magazines (Humo, Teve-blad, Story and Vitaya). De Persgroep Publishing NV inter alia committed to maintain Humo, Story and Teve-blad on the market for a period of three years to safeguard the plurality of media. Behavioural remedies aimed at maintaining editorial diversity were imposed by the Competition College on 25 October 2013 on Belgian media groups Corelio NV and Concentra NV when clearing the creation of Mediahuis. Both parties agreed to maintain the distribution of their respective newspapers.
What are the basic conditions and timing issues applicable to a divestment or other remedy?
In the first-phase investigation, the notifying parties have five working days from the day they are informed of the Prosecutor’s objections (which needs to occur at the latest on working day 20) to formally offer remedies. In the second phase, they have 20 working days from the opening of the second phase investigation to do so.
In recent cases, the remedies documents attached to the Authority’s conditional clearance decisions have taken a similar form as the model text of commitments under the EUMR, including a detailed description of the conditions and obligations attached to the clearance, the assets to be divested (in the case of a divestiture remedy), reporting obligations to the Authority, the conditions that need to be met by the purchaser of the remedy assets, etc. It is now standard practice to include the possibility for the notifying parties to request a waiver or modification of (part of) the commitments.
In 2018, the Authority lifted one of the conditions (the mandatory notification to the Authority of any organic growth) imposed on leading movie theatre company Kinepolis in 1997 when the authority conditionally approved the merger of cinema groups Bert and Claeys, resulting in the creation of Kinepolis. In late 2018, the Market Court annulled that decision on procedural grounds. The Authority subsequently adopted a new decision in 2019, lifting the same condition subject to some limitations.
In 2015, the incumbent telecom operator Proximus (formerly Belgacom) requested the Authority to lift the commitments imposed in 2011 in the context of its acquisition of Wireless Technologies BVBA and its subsidiary The Phone House (TPH), a retailer of telecom equipment and services. To alleviate the transaction’s anticompetitive effects created through vertical overlaps between the parties’ activities, Belgacom had offered to divest 25 to 35 TPH shops, transform two of its Belgacom Centres into TPH shops, and safeguard the multi-operator model of TPH shops for at least five years (including the adoption of a Chinese wall policy). The commitments contained a review clause that was triggered if the sales of competitors’ products constituted less than 30 per cent of the TPH’s total turnover. The Authority granted Proximus’ request to lift the commitments, as it concluded that the importance of TPH shops as distribution channels for Proximus’ competitors had decreased considerably since 2011, which made customer foreclosure by Proximus very unlikely. The Authority’s approval was conditional upon Proximus adopting a lenient approach in terminating the existing agency agreements; communicating transparently to customers when a certain shop had been transformed from the multi-operator to the exclusive model; and the adoption of a Chinese wall policy to protect any sensitive information available to TPH shops.
In 2016, the Authority showed that it takes the compliance with behavioural commitments seriously by fining a company for failure to abide by remedies. It found that Nethys (previously Tecteo) had not respected commitments offered in the context of its acquisition of Editions de l’Avenir-L’Avenir Advertising (EdA) in 2014. These commitments consisted of a number of behavioural remedies to prevent Nethys from gaining access to competitors’ commercially sensitive information through EdA’s advertising activities.
What is the track record of the authority in requiring remedies in foreign-to-foreign mergers?
The Competition College has not imposed any remedies in a foreign-to-foreign merger case.Ancillary restrictions
In what circumstances will the clearance decision cover related arrangements (ancillary restrictions)?
Even though the Competition Act does not provide any explicit reference to ancillary restrictions, its approach to ancillary restraints should be the same as under the EUMR. Therefore, competition restrictions (such as non-compete clauses) agreed in connection with a concentration will be covered by the clearance decision provided they are directly related and necessary to the implementation of the concentration. However, they are not expressly covered in the decision, so the risk of incorrectly categorising them as ancillary lies with the parties. Where they are not covered by the decision, they remain subject to the usual competition rules on restrictive agreements. The Authority recently confirmed this approach in its 2017 decision approving the acquisition by Brussels Airlines of Thomas Cook.
Involvement of other parties or authoritiesThird-party involvement and rights
Are customers and competitors involved in the review process and what rights do complainants have?
Any individual or legal entity showing ‘sufficient interest’ can intervene during the investigation. The Competition Act allows the Authority to consult any person it deems appropriate for the purpose of its investigation, and contacts with third parties, including competitors and customers, are routinely made. It has become standard practice in cases that give rise to competition concerns for the authority to hear interested third parties (see most recently Telenet/Coditel; Shanks NV/Van Gansewinkel Groep BV; Cebeo NV/Cheyns NV; bpost NV/AMP NV; Delhaize NV/Koninklijke Ahold NV; Kinepolis Group NV/Utopia NV; De Persgroep Publishing NV/Humo NV, Teve-blad, Story, Vitaya). Recently, the Authority has been using online investigation tools to collect feedback from customers and competitors (eg, in Volvo Belgium/Kant Group). Finally, the Supreme Court, when deciding on a reference for preliminary ruling in 2008, confirmed that interested third parties can be authorised by the Competition Council (and, by analogy, now by the Competition College) to inspect and make copies of certain non-confidential documents in the investigation file, provided that these documents are strictly necessary to enable the interested third parties to effectively intervene and raise any competition concerns. The Competition College has since granted interested third parties access to non-confidential extracts from the draft decision.Publicity and confidentiality
What publicity is given to the process and how do you protect commercial information, including business secrets, from disclosure?
Extracts of notifications (including the names of the parties) and decisions of the Competition College are published in the Official Gazette and on the website of the Authority.
Members of the Investigation and Prosecution Service and the Competition College may not use or divulge documents or information supplied in the notification for purposes other than those of the investigation. However, members of the Authority are freed from this duty of confidentiality when they give testimony in court. Responsibility for clearly identifying and marking confidential information as such lies with the party seeking protection.Cross-border regulatory cooperation
Do the authorities cooperate with antitrust authorities in other jurisdictions?
The Authority is a member of the European Competition Network, the European Competition Authorities Network and the International Competition Network.
The Competition Act allows the President, the Competition Prosecutor General and the members of the personnel of the Authority to exchange confidential information with the European Commission and the competition authorities of the other member states and use in evidence information received from them.
The President represents Belgium in European and international competition organisations and participates in meetings of European and international institutions.
Judicial reviewAvailable avenues
What are the opportunities for appeal or judicial review?
All decisions taken by the Competition College in the field of merger control, including decisions of the members of the Investigation and Prosecution Service under the simplified procedure, can be appealed to a specialised chamber of the Brussels Court of Appeal (the ‘Market Court’, which was created in January 2017). Interested third parties can appeal decisions if they previously requested to intervene during the proceedings before the Competition College regarding these decisions.
The Competition Act provides that the Market Court does not have full jurisdiction when reviewing merger decisions and can only annul or uphold the decisions.
A judgment by the Market Court can itself be reviewed on points of law and procedure only by the Supreme Court. The President represents the Authority in appeal procedures before the Market Court and the Supreme Court.
Decisions of the Prosecutors on the confidentiality of submitted information can be appealed to the President within three working days of notification of the decision.Time frame
What is the usual time frame for appeal or judicial review?
Final decisions of the Competition College in the field of merger control may be appealed to the Market Court within 30 days of notification of the decision to the parties. Third parties who intervened in the merger proceedings may also appeal the decision within 30 days of notification of the decision.
In general, the Market Court processes appeals brought against decisions of the Authority in merger control cases quickly (one year or even less).
Enforcement practice and future developmentsEnforcement record
What is the recent enforcement record and what are the current enforcement concerns of the authorities?
There is no specific severity or leniency in the Competition College’s enforcement policy as regards foreign-to-foreign mergers.
Mergers and acquisitions in the energy, telecommunications and financial sectors may attract particular attention from the Authority.Reform proposals
Are there current proposals to change the legislation?
On 25 April 2019, Parliament adopted a legislative proposal to amend Book IV of the Code of Economic Law. The new rules aim at streamlining merger control and other proceedings before the Authority. While the duration of the simplified Phase I and Phase II review periods will remain unchanged, the Prosecutors leading a merger control investigation will now have more leeway to stop the clock at all stages of proceedings, as opposed to only in Phase I as is currently the case. The Prosecutor will also have five more working days to pass its recommendations to the Competition College if the notifying parties submit a remedy proposal.
Update and trendsKey developments of the past year
What were the key cases, decisions, judgments and policy and legislative developments of the past year?Key developments of the past year36 What were the key cases, decisions, judgments and policy and legislative developments of the past year?
In 2018, the Authority adopted 36 decisions, compared to 28 decisions in 2017. All notified concentrations were cleared, with the vast majority of the clearance decisions (27) being adopted after a simplified review procedure.
In 2018, the Authority imposed remedies in one case, Volvo Belgium/Kant Group. It also reviewed the commitments it had imposed on Kinepolis in 1997 when it conditionally cleared the acquisition by Kinepolis of the cinemas Bert and Claeys.Volvo Belgium/Kant Group
In late January 2018, the Authority approved the acquisition by Volvo Belgium of various companies belonging to the Kant group, an official Volvo distributor and service provider, subject to conditions after a Phase I investigation. The transaction concerned the market for repair and maintenance of commercial Volvo vehicles. Although the Prosecutor had requested a Phase II investigation, the Competition College decided that the remedies proposed by the parties combined with the existing competitive constraints would be sufficient to alleviate any competition concerns. The parties offered a package of structural and behavioural remedies, including:
- the appointment of an additional Volvo service centre in the area where the parties had a combined market share of 70 to 80 per cent;
- the closure of a Volvo garage in Sint-Niklaas (where the parties had a combined market share of 50 to 60 per cent);
- a commitment not to initiate new repair and maintenance activities in the Sint-Niklaas area; and
- a commitment not to oppose companies commencing competing activities on the premises of the closed Volvo garage.
In May 2018, the Authority revised one of the conditions it had imposed on Kinepolis in 1997, by lifting the condition requiring the cinema group to obtain prior authorisation for opening new cinema complexes or acquiring existing facilities (organic growth). However, following an appeal lodged by one of Kinepolis’ competitors, the Market Court annulled the Authority’s decision on procedural grounds.
On 25 March 2019, the Authority again partially lifted the obligation to request prior authorisation for organic growth, subject to certain conditions in relation to the size (no authorisation required if a new cinema has a maximum of seven theatres and a maximum of 1,125 seats) and the location (10-km radius around existing Kinepolis cinema complex) of any new cinema complex.
In the first four months of 2019, the Authority adopted a decision under the non-simplified procedure: Ineos Oxide/RWE Generation that was cleared unconditionally. The Authority is set to issue a decision on Telenet’s proposed takeover of the De Vijver Media later in 2019, following the European Commission’s referral of the deal to the Authority in November 2018.