The new Belgian Competition Authority started its activities on 6 September 2013. The change was driven by a focus on increasing efficiencies and output while preserving rights of defence of the parties. After more than six months, it is now time for a status update.
On the merger control side, the Authority approved two deals in October 2013. The first involved the nonprofit organization Touring Club Royal de Belgique, which is acquiring sole control over S.A. Autoveiligheid and its subsidiary Bureau voor Technische Controle N.V. (see decision MEDE-C/C-13/0023) in the area of insurance and technical assistance and inspection for car users. The Authority imposed commitments on the parties: it required that inspection services (concerning the mandatory periodical inspection of all Belgian vehicles) and the company’s commercial activities be kept separate from an operational and structural point of view.
The second allowed the creation in the media sector of the Mediahuis company by companies S.A. Corelio and S.A. Concentra, provided that they comply with commitments including the fact that each newspaper’s related activities are maintained and that the editorial teams are sufficiently developed and kept separate for each newspaper (See decision MEDE-C/C-13/0023).
Recently, the Auditorat (the body in charge of investigations within the Authority) opened an ex officio investigation into the creation of a joint venture between Telenet and the Belgian Pro League, whereby the soccer clubs would bring broadcasting rights of the Jupiler Pro League matches into the JV under an exclusive license agreement for a renewable term of six years. According to the Auditorat, this would enable the JV to set up one or more sport channels which would then be offered on a non-exclusive basis to other platforms or existing channels. The Auditorat took the preliminary view that the operation meets the Belgian notification thresholds and should be notified. In addition, the Auditorat deems that, under its current structure, the deal would raise competition concerns in the wholesale and the retail markets for the production of TV content and on the market for free-to-air (FTA) channels (See the press release on this page.).
In the field of antitrust, the Auditorat has submitted its first project of decision (for the decisional body to review) in a case regarding alleged restrictive practices in the energy sector on markets including the wholesale market for the supply of electricity (See the press release on this page.).
This short overview of past decisions and publications indicates that the new Competition Authority is indeed functioning well; indeed, its transparency in communicating its activities is welcome, even regarding the draft decision issued by the Auditorat. What is even more interesting is that an investigation was started ex officio by the Auditorat which could indicate that parties to future transactions should pay specific attention to Belgian thresholds in order to avoid ex-post scrutiny.
Many new provisions and mechanisms resulting from the 2013 reform still need to be tested in real life. One could think about the treatment of individuals in cartel cases especially regarding leniency application and potential financial sanctions. Will this change the stakes in the game?
In addition, a draft bill introducing the possibility for multiple claimants to ask for damages deriving notably from a breach of antitrust rules, is currently discussed at the Belgian Parliament. Will this change the number of players in the game?
The press releases and decisions mentioned above, as well as other related releases, are available in Dutch and in French on the website of the Belgian Competition Authority.
Companies doing business in Belgium should take into account in their business strategy what could be seen as a new era of enforcement where the Belgian Competition Authority has more means to maintain an increased scrutiny on the markets.