I INTRODUCTION

The entry into force of Book IV of the Code of Economic Law2 on 6 September 2013 introduced some fundamental changes to Belgian competition law.

One of the main innovations was the simplification of the Belgian Competition Authority’s structure. The Competition Authority’s former tripartite structure was changed into a single administrative body that investigates and decides upon competition law infringements. Within this newly created administrative body, a distinction was made between the College of Competition Prosecutors (headed by the Prosecutor-General), which holds the Belgian Competition Authority’s investigative powers, and the Competition College, which holds the Competition Authority’s decision-making powers.3 The Competition College consists of two assessors (appointed in alphabetical order from the relevant (native Dutch or French-speaking) list of 20 nominated assessors) and the President of the Belgian Competition Authority, who presides over the Competition College.4 In merger control cases, the Competition College will decide whether to authorise a concentration in regular proceedings, whereas the Prosecutor will, in the first instance, decide whether to authorise mergers filed under the simplified merger procedure.

Regarding the substantive law on merger control, Book IV of the Code of Economic Law did not make any significant changes. Nevertheless, some deadlines for the Competition Authority to reach a decision on a proposed merger have been shortened; the possibility for the Competition Authority to make preliminary references to the Supreme Court in merger control procedures was abolished; and Book IV of the Code of Economic Law no longer allows the Council of Ministers to overturn decisions of the Competition Authority.

Under Book IV of the Code of Economic Law, a pre-merger notification and approval for all concentrations above the legally established thresholds remains required. Concentrations must be notified to the Competition Authority where the undertakings concerned, taken together, have a total turnover in Belgium of more than €100 million, and where at least two of the undertakings concerned each have a turnover of at least €40 million in Belgium.5

In addition to Book IV of the Code of Economic Law, there are a large number of royal decrees regulating various aspects of merger control in Belgium.6 The Belgian merger control rules and case law are substantially influenced by European merger control rules and case law. The Belgian courts and Competition Authority have repeatedly stated that Belgian competition law should be interpreted in light of the European courts’ jurisprudence and the decisions and guidelines of the European Commission, to which reference is often made.

II YEAR IN REVIEW

In 2005 the notification thresholds were substantially increased, and in 2006 a simplified procedure was formally introduced into Belgian competition law. These changes resulted in a significant decrease in the number of notifications and a substantial increase in the number of mergers filed under the simplified procedure. In 2008 and 2009, the number of concentrations further declined as a consequence of the financial and economic crisis. From 2010, the number of notifications increased again. In 2015, 29 notifications were made and 31 final decisions were issued. Out of these final decisions, 24 were issued under the simplified procedure, four under the non-simplified procedure and three concerned procedural issues or revisions of commitments.

Concentrations

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

Number of notifications

17

17

20

13

7

20

20

17

25

15

29

Number of final decisions

15

15

20

15

7

19

22

16

24

18

31

Number of non-simplified procedures

7

7

1

4

2

4

3

4

3

2

4

Given that the decisions in simplified procedures are generally only a page long and only include the parties’ names, the markets in which they operate and the Prosecutor’s confirmation that the conditions for the simplified procedure were fulfilled, these decisions do not provide any guidance on procedural issues or substantive matters. Therefore, only the decisions taken in regular procedures or the Court of Appeal’s judgments are discussed here.

In March 2015, the Brussels Court of Appeal confirmed the Competition College’s conditional clearance decision of October 2013 in the Touring/Autoveiligheid case.7 In this decision, the Competition Council had ordered Touring Club to take all the necessary measures to ensure the operational and structural separation of its commercial activities and the target companies’ regulated activities.8 This conditional clearance decision was contested before the Court of Appeal because the appellants believed that the imposed commitments should have been structural rather than behavioural and that the commitments could not be monitored. The Court of Appeal dismissed the appeal by, among other things, noting that the imposed commitments were at least partially structural and were sufficiently concrete to be implemented by Touring Club and monitored by the Belgian Competition Authority, even if such monitoring was not explicitly stated in the conditional clearance decision.

On 8 June 2015, the Competition College cleared Altrad Investment Authority SAS’ acquisition of Hertel Holding NV.9 Both companies were active in industrial insulation, scaffolding and painting. Additionally, Altrad was also active in asbestos removal. After concluding that the concerned markets were the Belgian market for the delivery of industrial scaffolding services and the Belgian market for the delivery of industrial insulation services, the Prosecutor considered that the proposed transaction would not give rise to any non-coordinated, coordinated or conglomerate effects in these markets. The Prosecutor mainly referred to the fact that the majority of customers and competitors that responded to the information requests had not voiced any competition concerns. Moreover, the Prosecutor also took into account that the concerned markets were bidding markets in which there was no price transparency among the competitors. The Competition College shared the Prosecutor’s view, adding that usually at least four competitors took part in each bid and that the Dutch and German competition authorities had also cleared the transaction without imposing any conditions.

On 23 June 2015, the Competition College conditionally lifted the commitments imposed on Proximus NV (previously known as Belgacom NV) in the context of the Belgacom/Wireless Technologies acquisition,10 under which Belgacom had acquired the ‘The Phone House’ distribution network.11 In 2011, the acquisition had been approved provided that Belgacom, among other things:

  • a resold nearly half of the acquired The Phone House points of sale;
  • b operated the points of sale of The Phone House as a multi-operator distribution network for five years; and
  • c operated a Chinese Wall policy for the multi-operator points of sale.

On 11 May 2015, Proximus filed a request to have the multi-operator commitment, including the obligation to operate a Chinese Wall in the multi-operator points of sale, lifted. This request would render the current The Phone House points of sale exclusive Proximus points of sale. In the 2011 decision, the right to lift this commitment was made conditional upon Proximus’ competitors’ total sales in The Phone House points of sale falling below 30 per cent due to the decisions of the competitors. After the Prosecutor found that this condition had indeed been met, he continued to investigate what the impact would be on the market for mobile telephony services by lifting the requested commitment. After this investigation, the Prosecutor found that the importance of The Phone House points of sale had steadily decreased since 2011 in favour of competitors’ own exclusive distribution networks. This finding suggested that Proximus’ possible foreclosure of customers after the transformation of The Phone House points of sale was rather unlikely. In this context, the Prosecutor also referred to the fact that changes in telecoms legislation making it easier to switch operators had strengthened the position of consumers, and that the increasing importance of joint offers (e.g., phone and subscription) and bundles of telecommunication services (e.g., mobile phone, landline, internet and TV) favoured competitors’ use of their own, respective exclusive distribution networks over the multi-operator model. The Prosecutor even noted that lifting the original commitment could have positive effects on competition by limiting possible collusion between competitors and by no longer inducing Proximus into diverting customers interested in competitors’ products and services to its own products and services. Nevertheless, the Prosecutor did find that the imposition of certain transitory commitments was necessary to limit potential competition concerns during the transformation phase of The Phone House’s points of sale to Proximus’ points of sale. Therefore, Proximus agreed to the following commitments:

  • a to give competitors using The Phone House network the right to withdraw from the network without any repercussions and within a relatively short time frame;
  • b to inform consumers in a clear way about which competitors would still offer services through the respective The Phone House points of sale;
  • c to clearly inform customers when a respective point of sale would become an exclusive Proximus point of sale; and
  • d to appoint a monitoring trustee.

The Competition College agreed entirely with the Prosecutor and confirmed the Prosecutor’s point of view.

On 4 August 2015, the Competition College cleared De Persgroep NV’s acquisition of Humo NV’s share capital and the Story, TeVe-blad and Vitaya magazines, provided that certain commitments were respected.12 Both De Persgroep and the sellers, Sanoma Media Belgium NV and Sanoma BV, were, among their other activities, active in the Belgian market for the publication of Dutch-language magazines. On the basis of the market investigation, the Prosecutor defined the concerned markets as the Belgian market for the publication of Dutch-language magazines for TV and infotainment (including TV programming) and the Belgian market for the sale of advertising space in Dutch-language magazines. The Prosecutor then continued by finding that the proposed transaction could give rise to anticompetitive effects on the first of these two concerned markets. First, the Prosecutor found that, given De Persgroep’s significant, post-transaction market share (more than 80 per cent) and the fact that only one other competitor remained active in that market, the proposed transaction could give rise to a price strategy in which De Persgroep could strategically use one of the acquired magazine titles to drive its only competitor out of the market and then increase market prices. The Prosecutor noted that it was also likely that the plurality of magazine titles would wither away after the transaction as De Persgroep had indicated that it wanted to create certain synergies. Second, the Prosecutor noted that De Persgroep, through its 50 per cent participation in a TV broadcasting company, could cause severe, post-transaction damage to its only competitor by foreclosing this competitor from obtaining the necessary TV programming information relating to the channels operated by the TV broadcasting company. In this context, to be able to clear the transaction, the Prosecutor suggested that commitments be made to remedy these competition concerns. In its decision, the Competition College did not rule on the exact market definition. However, the Competition College did share the Prosecutor’s view regarding the competition concerns and the necessity that commitments should be offered. However, the College also noted that in the absence of the merger, there would also be a real risk that the four magazines would disappear and that the survival chances would be higher after the merger with De Persgroep focusing on television and infotainment magazines than in the Sanoma group for which these magazines were no longer strategic. Consequently, the transaction was cleared provided the following commitments would be respected over a three-year period:

  • a to keep the format and editorial content of the Story and TeVe-blad titles (and also, to a certain extent, Humo) largely unchanged and, in the TV programming section of these titles, not to pay disproportionate attention to the channels of the TV broadcasting company in which De Persgroep had a 50 per cent ownership (as compared to the other TV channels);
  • b to first offer a title for sale to any interested buyers upon reasonable conditions in case De Persgroep would like to discontinue one of these titles;
  • c to ensure that the TV broadcasting company in which De Persgroep continued to have a 50 per cent ownership will respect a standstill obligation relating to the conditions, the quality and the time of making available the programming information relating to its current and future TV channels; and
  • d to appoint a monitoring trustee.

This transaction also gave rise to a procedural issue that was dealt with by the Competition College in a separate decision.13 A fine of €50,000 was imposed for negligently hindering the merger investigation as a result of the late submission of a market study in response to a simple information request. Given the short time frame in which merger investigations must be conducted, the College noted that the parties had a special duty of care and, thus, without delay should have provided the Prosecutors with all the information that had been reasonably requested. The College noted that: the market study at issue was only submitted (a couple of hours) after the deadline for the Prosecutors to communicate their first objections to the parties in view of allowing them to propose commitments; and Sanoma had already been aware of the existence of this market study for two working days before the study was submitted. On that basis, the College judged that the late submission should be considered as hindering the investigation. The fact that the market survey would not have led the Prosecutor to come to a different conclusion was considered to be irrelevant. In its decision, the College for the first time applied the Guidelines on the calculation of fines to procedural infringements within the framework of merger investigations.14 The fact that there was no case-law precedent in which similar behaviour had been considered to hinder an investigation, that this was the first time that the Guidelines on the calculation of fines were applied as guidance for the calculation of a fine for a procedural infringement in the framework of a merger investigation and the lack of intent were considered to be mitigating circumstances.

The new competition authority also imposed for the first time a fine for gun jumping. In an agreement on 19 August 2015, Cordeel Group acquired full ownership and the majority of the shares in Imtech Belgium Holding and Imtech Belgium.15 Imtech Benelux Group and Imtech Nederland acted as vendor parties to the transaction. As Royal Imtech, Imtech’s holding company was declared bankrupt, the vendors were represented by liquidators. Due to the specific circumstances of this case (the bankruptcy of the vendor party), the transaction was implemented within a very short period of time and before notification. The takeover was widely covered by the press, and the Competition Authority contacted Cordeel of its own initiative to remind it of the applicable merger control rules. Only then did Cordeel start preparing the notification. In the first stage, the President of the Competition College granted, at Cordeel’s request, a waiver of the standstill obligation with retroactive effect, to ensure the lawfulness of the acts performed by the merged company. Secondly, concerning the merits, the Prosecutor concluded that the transaction was admissible, as it did not raise any competition concerns. However, the Prosecutor also proposed that the Competition College impose a fine for gun-jumping. Because a fine can only be imposed by the Competition College, and not by the Prosecutor, the Prosecutor refused to handle the notification according to the simplified procedure (which was dealt with by the Prosecutor) and required Cordeel to notify according to regular procedure for the case to be decided by the Competition College. The Minister of Economic Affairs intervened in this case. The Competition College cleared the transaction and only imposed a symbolic fine of €5,000 on Cordeel. It came to this decision by taking into account the special circumstances of the case, among others the extreme time pressure on the buyer as a consequence of Imtech’s imminent bankruptcy, the fact that the concentration did not raise any competition concerns, the fact that Cordeel’s infringement had not been intentional and did not result in any benefits for Cordeel, and the proportionality in relation to the transaction’s value. The Competition College, however, explicitly noted the importance of the prior notification obligation whenever the turnover thresholds are met, even in non-problematic cases where no overlaps between the activities of the parties to the transaction exist and the transaction does not raise any competition law concerns.

On 30 November 2015, the Competition College decided that a transaction in which Kinepolis would buy four Utopolis cinema complexes raised serious doubts about its permissibility, and opened second stage proceedings.16 After this additional investigation and the dismissal of the first sets of commitments proposed by Kinepolis, the Prosecutor concluded that the transaction would still not be permissible for the following reasons:

  • a The transaction would allow Kinepolis to create or to reinforce its dominant position on the concerned local and national markets. This conclusion was already sufficient to declare the transaction impermissible.
  • b As a consequence of the proposed transaction, one of Kinepolis’ competitors, running four large cinema complexes in Flanders (a region in which Kinepolis was very active) would disappear.
  • c The transaction would hinder the growth of Kinepolis’ competitors in a saturated market in which growth would only be possible by taking over existing cinema complexes.
  • d It was very likely that the transaction would have many negative, unilateral consequences regarding consumers (price increases and decreases in offers), regarding competitors (scale economies, expansion possibilities and improved negotiation position) and regarding distributors (concerning the reinforcement of the existing market positions).

On 25 March 2016, the Competition College of the Belgian Competition Authority approved Kinepolis’ acquisition of the Utopolis cinema complexes, after Kinepolis accepted some additional structural and behavioural conditions.17

First, Kinepolis must transfer the cinema complexes of Mechelen and Aarschot to a third-party buyer who could become an active competitor to Kinepolis and the other players in the market.

Second, regarding the cinema complexes of Turnhout and Lommel, the following behavioural conditions were imposed for a period of three years:

  • a accepting vouchers that were sold by other cinemas in the framework of existing cooperation contracts;
  • b a prohibition upon closing the cinema complexes; and
  • c monitoring customer satisfaction concerning the relationship between the price and quality of the cinema experience.

On 28 January 2016, in a transaction concerning, on the one hand VikingCo NV (Mobile Vikings), VikingCo International NV and Jim Mobile, and, on the other hand Medialaan NV, the Competition College agreed with the Prosecutor’s proposal and accepted the takeover of VikingCo NV (Mobile Vikings), VikingCo International NV and the client data of Jim Mobile by Medialaan NV, a Flemish media concern.18 This transaction was part of the commitments offered in response to the European Commission’s objections arising from the larger acquisition by Liberty Global (which is the majority shareholder of Telenet) of Base. Consequently, the transaction was conditional upon the European Commission’s approval of the Base takeover. After the European Commission’s approval of the transaction, Medialaan NV would become active as a mobile virtual network operator (MVNO) and therefore enter into competition with the other actors in the Belgian retail market for mobile communications.

On 15 March 2016, the Competition College of the Belgian Competition Authority approved, subject to certain conditions, the merger of two supermarket chains active in Belgium, Delhaize Group and Ahold.19 The transaction was notified to the Belgian Competition Authority following the decision of the European Commission of 22 October 2015 to refer the case to the Belgian Competition Authority. The case was referred at the request of the parties under Article 4(4) of the Merger Regulation based on the fact that the only significant overlap in the parties’ activities in Europe was in Belgium. In its draft decision, the Prosecutor concluded that the transaction would probably not significantly impede effective competition on the market for the purchase of daily consumption goods. For the market for the sale of daily consumption goods via hypermarkets, supermarkets and discounters, the Prosecutor deemed the structural commitments offered necessary to respond to the following concerns:

  • a The parties would reach high market shares in different local areas after the merger. This would lead to high market concentration in these areas.
  • b High barriers to entry in the sector would hinder the entrance of new players on the market.
  • c After the merger, the competitive pressure between the two merging undertakings would disappear.
  • d It could be assumed that the disappearance of the competitive pressure between the two merging undertakings after the merger also had the effect of diminishing the competitive pressure with regard to other retailers.
  • e The chances of coordinated effects on the relevant market after the merger would be quite real.

The Competition College decided that the cumulative effect of competition concerns in different small local markets for the sale of daily consumption goods resulted in serious doubts regarding the merger’s permissibility. As the parties could not guarantee they would keep the two supermarket chains separate after the merger with one or different business models, the Competition College took into account the most restrictive form of integration of the two chains for its decision. In its analysis regarding non-coordinated effects, the Competition College stated that the Prosecutor had identified the markets as raising serious doubts concerning where the parties had a market share of about 40 per cent or more and where the market share of the second player on the market was half or less than the market share of the parties. The Competition College agreed with this analysis.

Furthermore, the Competition College decided that the last version of the commitments offered on 16 February 2016 was sufficient to remove its concerns about the merger’s permissibility. The commitments concerned the transfer of eight Ahold and five Delhaize franchise stores, and a few stores that were not yet opened, to a buyer that had the financial power, proven relevant expertise and necessary incentives to keep the stores as an active and viable competitor of the merged enterprise and other competitors. Until these divestments, the Ahold and Delhaize shops need to be operated independently in Belgium.

III THE MERGER CONTROL REGIME

As mentioned in Section 1, concentrations must be notified in Belgium if the undertakings concerned, taken together, have a total turnover of more than €100 million in Belgium,20 and if at least two of the undertakings concerned each have a turnover of at least €40 million in Belgium, unless the concentration has a ‘Community dimension’21 and thus must be notified to the European Commission. The relevant turnover is the consolidated sales turnover in Belgium during the preceding financial year. On the seller’s side only the Belgian turnover generated by the target company (or companies) (or sold business) should be taken into account.22 The parties must obtain approval for the proposed concentration before it can be implemented.23

In 2006, the ‘significant impediment to effective competition’ test was introduced in Belgian competition law as the substantive test for clearance, aligning it with the EU Merger Regulation. A particular feature of the Belgian merger control system is that if the post-merger joint market share of the parties in any relevant horizontal or vertical market does not exceed 25 per cent, then the transaction must be approved by the Competition College.24

The first step in the notification procedure usually consists of pre-notification contacts with the Competition Authority, in particular with the Prosecutor. The Code of Economic Law does not oblige the parties to make pre-notification contacts, but it is recommended25 and has become standard practice. In principle, a formal notification may only be submitted after the informal approval of the Prosecutor-General has been obtained in the context of such pre-notification contacts. These contacts can take place via telephone or email, or in face-to-face meetings. The discussions usually take place based on a draft notification. These contacts have several purposes, including:

  • a the parties and the Prosecutor can discuss a number of essential points (such as whether the concentration must be notified, whether the simplified procedure could be used and what information must be provided);
  • b reducing the risk of the Prosecutor finding the notification to be incomplete (which has a significant impact on the notification’s timing);
  • c the Prosecutor can, at the parties’ request, exempt the notifying parties from providing certain information,26 which can make the notification less onerous; and
  • d they allow the parties to understand the Prosecutor’s point of view on, for example, the market definition, and to more accurately estimate whether Phase I clearance is likely to be granted.

For the notification itself, the parties must use the ‘CONC C/C form’.27 By completing this form, the parties provide a wide range of information on, among other things, the concentration, the parties, their economic activities, the relevant markets and the effects of the concentration on the relevant markets. The information provided must be correct and complete;28 otherwise the notification cannot have any effect.29 In general, the notification obligation falls on the party acquiring control through the concentration.30 In the case of a merger between two formerly independent companies, the obligation falls on both parties.31 The concentration must be notified after the agreement’s conclusion and before its implementation. Nevertheless, the parties can notify a draft agreement if they declare that it will not significantly differ from the proposed agreement on all relevant points from a competition law perspective.32

The notification must be made in Dutch or in French.33 The documents attached to the notification must be filed in their original language. If that language is not Dutch, French or English, a translation into the notification language must be added.34 The notification, including its annexes, must be sent to the Belgian Competition Authority for the attention of the Prosecutor-General in three copies, either by registered post or by courier with acknowledgment of receipt, using the address indicated on the Belgian Competition Authority website. At the same time, an electronic copy of the notification and its annexes must be sent by email to the Secretariat of the Belgian Competition Authority for the attention of the Prosecutor-General, using the email address indicated on the Belgian Competition Authority website.35

As is the case in European merger control, the parties must suspend the implementation of the merger until it has been cleared.36 Failure to respect this standstill obligation can result in fines of up to 10 per cent of the notifying parties’ annual turnover.37 In exceptional circumstances, the President can permit the parties to implement the merger before it has been approved, but such an exemption must, in principle, always be requested before the merger’s implementation.38 Failure to notify a merger can result in fines of up to 1 per cent of the notifying parties’ respective annual turnovers.39 The same fines may apply if incorrect or incomplete information is provided in a notification or a request for information, if the information is not provided on time or if the notifying parties hinder or prevent the investigation.40

The Belgian Competition Act makes a distinction between the simplified merger procedure and the regular merger procedure.

i Simplified procedure

On 1 October 2006, the simplified merger procedure was introduced in Belgian competition law. Before that date, the simplified procedure was based on ‘soft law’. It was only on 8 June 2007 that the General Assembly of the Council approved this procedure’s detailed rules and thus replaced the previous ‘soft law’ rules.41

The simplified procedure is highly practical, and today the vast majority (about 80 per cent) of notifications are made using this procedure.

The simplified procedure has two essential characteristics: first, the Prosecutor (and not the Competition College) examines the merger and decides whether to authorise it; second, the simplified procedure is very short, as the Prosecutor has to make a final decision within 15 working days of having received the notification. The amount of information that must be filed is also substantially less than in the regular procedure.

The parties can choose the simplified procedure for the following categories of concentrations:42

  • a two or more undertakings acquire joint control over a joint venture on condition that the joint venture is not active or is only active to a small degree on the Belgian market, when the joint venture’s turnover or the turnover of the brought-in activities in Belgium, or the turnover of both, is less than €40 million; and the total value of the transfer in assets to the joint venture in Belgium is less than €40 million;
  • b none of the parties to the concentration are active on the same product and geographical markets, or on a product market situated upstream or downstream of a product market on which one or more parties to the concentration is active;
  • c two or more of the parties to the concentration are active on the same product market and geographical market (horizontal relationship), on condition that their joint market share is less than 25 per cent; or one or more parties to the concentration are active on a product market upstream or downstream of a product market on which another party to the concentration exercises activities (vertical relationship), on condition that their individual or joint market shares amount to less than 25 per cent; and
  • d a party acquires sole control over an undertaking over which it already exercises joint control.43

As mentioned above, the Prosecutor has only 15 working days from the notification44 to decide whether the conditions for the simplified merger procedure apply and whether the concentration raises any objections45 or doubts as to its permissibility.46 If the Prosecutor fails to come to a decision before the deadline, the merger is deemed to have been approved.47 If the Prosecutor concludes that either the conditions for applying the simplified procedure are not fulfilled or the concentration raises objections, the use of the simplified procedure will be rejected and a full notification under the regular procedure must be made.48 Moreover, the timetable for the regular proceedings will only start running after the new filing is made, as the simplified notification will be deemed to have been incomplete from the start. If the Prosecutor accepts that the conditions for the simplified procedure apply and does not find any objections, the merger must be approved. In this respect, it is also useful to refer to a peculiarity of Belgian merger control that obliges the Authority to approve any merger where the parties’ Belgian market share does not exceed 25 per cent, which will often be the case in simplified merger filings. The Prosecutor informs the parties of the decision by post, which is deemed by law to have the value of a decision of the Competition College for the application of Book IV of the Code of Economic Law.49

Even though the simplified procedure is formally included in Book IV of the Code of Economic Law, it still entails some uncertainty for the parties. First, there is uncertainty as to timing. As set out above, a ruling that the simplified procedure cannot be used means that the parties have to start regular proceedings from scratch. Even if the Prosecutor during the pre-notification contacts indicates that the concentration qualifies for the simplified procedure, nothing is certain, especially given the wide interpretation of the ‘no objection’ criteria, which can allow third parties to force the notifying parties into a regular notification by filing objections. This uncertainty is increased by the absence of any right to appeal against a Prosecutor’s decision to revert to the regular procedure.

ii Regular procedure

The regular procedure is divided into two phases (Phase I and Phase II), which each consist of an instruction and a decision stage. Once a complete notification has been filed, the Prosecutor will open a Phase I procedure. At this point, a summary of the notification is published in the Belgian Official Gazette and on the Competition Authority’s website. The Prosecutor gathers information and submits a reasoned draft decision to the Competition College, who takes the final decision to either approve the merger (possibly subject to certain conditions) or to open a Phase II procedure.

Book IV of the Code of Economic Law contains fixed time frames for both the decision and the investigation. Once the concentration has been notified, the Prosecutor must submit a reasoned draft decision to the Competition College within 25 working days of the day after the notification.50 A copy of this report will also be sent to the parties and a non-confidential version to the representatives of the employee organisations of the undertakings involved.51 If the file is incomplete, the time period only starts when the complete information is received. If commitments are presented, the time limit is extended by five working days.

No less than 10 working days after the communication of the Prosecutor’s reasoned draft decision, the Competition College organises a hearing during which the parties and any interested third parties are heard.52 From the moment the Prosecutor’s draft decision is submitted, the parties must be given full access to the file, except for confidential submissions from third parties. Third parties, on the other hand, only have a right of access to the file in limited circumstances. The Competition College must decide whether to approve the merger within 40 working days from the day after the notification.53 This deadline is extended by 15 working days in cases where commitments are proposed. Furthermore, the parties can request an extension of the deadline after the investigation has ended.54 This extension may be particularly relevant if the parties need more time to convince the Competition College of their case, offer commitments, etc., to avoid the opening of a Phase II investigation.

If the Competition College has serious doubts about approving the merger, it can order an additional investigation under the Phase II procedure. The parties have 20 working days after such a decision to propose commitments.55 Furthermore, the Prosecutor must submit its revised draft decision within 30 working days of the decision.56 The parties may submit their written observations within 10 working days of the submission of the revised draft decision. If the parties submit written observations, the Prosecutor may submit an additional draft decision within five working days.57 A hearing must be held no less than 10 working days after the submission.58 The Competition College must decide whether to approve the merger within 60 working days of initiating the Phase II procedure.59 This deadline can be extended at the parties’ request.

If the Competition College fails to make a Phase I or Phase II decision by the deadlines set out above, the merger is deemed to have been approved.

The Competition Act does not grant interested third parties the right to access the file, but only to be heard by the Competition College.60 However, the Supreme Court61 has somewhat limited this principle by ruling that, in exceptional circumstances, an interested third party can obtain access to the file to the extent that this access is limited to a non-confidential version and that such access is strictly necessary to allow the third party to set out its views on the merger. In practice, it seems that the Competition College is more inclined to refuse access than to grant it. However, in the Mediahuis decision, the Brussels Court of Appeal confirmed that the Belgian Competition Authority is obliged to give access to the concentration file that was submitted to the Competition College during the appeal proceedings.62

Once a decision has been taken, notifications must be sent to the parties, the relevant minister, anyone who might have an interest and anyone who has requested to be kept informed. The decisions are also published in the Belgian Official Gazette and on the Competition Authority’s website.63 Before publication, the President of the Competition College will decide which, if any, passages in the decision are confidential,64 and will invite the parties to submit their views on this confidentiality.

Appeals against decisions made by the Competition College can be made to the Brussels Court of Appeal and, subsequently, the Supreme Court. The appeal could be against the Competition College’s decision to approve or refuse a merger or against default approvals when the Competition College failed to make a decision by a specified deadline.65 The appeal could be lodged by the parties, by interested third parties who have requested to be heard by the Competition College and by the Minister of Economic Affairs. The appeal must be lodged within 30 days of the notification of the decision.66

Before the Court of Appeal, the parties present their arguments in writing and at a hearing. The Minister of Economic Affairs can also submit written arguments to the Court of Appeal. Since the entry into force of Book IV of the Code of Economic Law, the Belgian Competition Authority, represented by the President, can also intervene as a party in the proceedings and submit written arguments. At any time, the Court of Appeal can call the parties to the case before the Competition College when there is a risk that the appeal may affect their rights or obligations.67 In cases concerning the admissibility of concentrations, the Court of Appeal does not have full jurisdiction, but will only rule with the power of annulment.68

An appeal to the Court of Appeal does not suspend the Competition College’s decision,69 and it continues to have full effect until the Court of Appeal issues its judgment. However, at the request of one of the parties, the Court of Appeal can order the suspension of the Competition College’s decision. In practice, the suspension of a College decision usually is of limited interest to the parties, as they are bound by the suspension obligation of the merger until it is approved. However, in the Cable Wallon case, it turned out to be useful when the Court of Appeal overruled a tacit admissibility decision and reopened the investigation.70 On the other hand, a suspension might be useful to third parties who have appealed against a decision to ensure that the merger is not implemented.

IV OTHER STRATEGIC CONSIDERATIONS

As is the case in all merger control proceedings, time is of the essence. Under the Belgian merger control system, a third party could try to prolong merger procedures to the disadvantage of its competitors. A third party could, for instance, prevent the merging parties from enjoying the benefits of the simplified (and much faster) procedure by raising objections to the merger. This practice appeared to work, even in cases where such objections are based on rather weak arguments.

Regarding timing, it should be noted that the deadline imposed on the Prosecutors to issue decisions in simplified merger filings has been shortened from 20 to 15 working days (with it being understood that Saturdays are now also considered as working days). Therefore, it becomes even more important to start pre-notification contacts well before the actual merger filing. In case of a simplified procedure, it is also advisable to start pre-notification contacts to obtain as much certainty as possible about the Prosecutor’s preliminary view on whether the conditions for a simplified procedure are fulfilled and on the extent of the information that should be provided to convince the Belgian Competition Authority that the simplified procedure’s conditions indeed apply.

V OUTLOOK and CONCLUSIONS

In 2015, the number of notifications filed and the notification decisions issued significantly increased compared to previous years. Moreover, a significant number of concentrations were filed under the regular merger control procedure. Two of these decisions gave rise to fines for procedural infringements, one for negligent obstruction and one for gun-jumping. It is clear that the Belgian Competition Authority expects the parties to a concentration to act diligently, and that it will fine undertakings that omit to notify or do not reply in a timely manner to requests for information in merger proceedings, with or without intent.

From the decisions that have already been issued under the regular merger control procedure since the entry into force of Book IV of the Code of Economic Law, it can be seen that it is not uncommon for approval decisions to be linked to complying with certain commitments. In this context, it should be noted that, as is the case under European competition law, both behavioural and structural remedies can be accepted. Whereas the Belgian Competition Authority seemed to be more inclined to impose behavioural remedies in the past, in recent decisions structural remedies have also been imposed (e.g., in the Delhaize/Ahold merger or the Kinepolis/Utopolis case).

Finally, a legislative proposal is currently pending concerning amending Belgian competition legislation. In this respect, there have been calls to introduce a ‘stop the clock mechanism’ in Belgian merger proceedings. It is also proposed to increase the maximum fines from 10 per cent of the Belgian turnover to 10 per cent of the worldwide turnover of the infringing undertakings. The amendments to the Belgian competition legislation are expected to be adopted in the final quarter of 2016/first quarter of 2017. In the next months, however, the current provision defining working days including Saturdays will already be amended to exclude Saturdays again from this definition for competition law proceedings, meaning that the Belgian Competition Authority will have a little more time to come to a decision in merger control proceedings.

Footnotes

1 Carmen Verdonck is a partner and Steffie De Cock is an associate at ALTIUS. The authors wish to thank Jenna Auwerx for her contribution in writing this article.

2 Code of Economic Law of 28 February 2013, Belgian Official Gazette 29 March 2013.

3 Despite the Competition College formally holding the Belgian Competition Authority’s decision-making powers, Book IV of the Code of Economic Law also grants certain decision-making powers to the College of Competition Prosecutors (for example, within the framework of the simplified merger procedure).

4 Articles IV.16 ff Code of Economic Law.

5 Article IV.7, Section 1 Code of Economic Law.

6 The most important royal decrees are the Royal Decree of 30 August 2013 on procedures with regard to the Protection of Economic Competition, Belgian Official Gazette 6 September 2013; and the Royal Decree of 30 August 2013 on the Notification of Concentrations of Undertakings in Accordance with Article IV.10 of the Code of Economic Law as inserted by the Acts of 3 April 2013, Belgian Official Gazette, 9 September 2013.

7 Decision of the Brussels Court of Appeal of 11 March 2015 in Case No. 2013/MR/31, VAB NV, VAB Rijschool NV, Rijscholen Sanderus NV/Belgian Competition Authority.

8 Decision No. BMA-2013-C/C-02 of 24 October 2013 in Case No. MEDE-C/C-13/0023, Koninklijke Belgische Touring Club/Autoveiligheid and Bureau voor Technische Controle.

9 Decision No. BMA-2015-C/C-15 of 8 June 2015 in Case No. MEDE-C/C-15/009, Hertel Holding NV/Altrad Investment Authority SAS.

10 Decision No. BMA-2015-C/C-20 of 23 June 2015 in Case No. MEDE-C/C-11/0010, Belgacom NV/ Wireless Technologies BVBA.

11 Decision No. 2011-C/C-55 of 23 December 2011 in Case No. MEDE-C/C-11/0010, Belgacom NV/ Wireless Technologies BVBA.

12 Decision No. BMA-2015-C/C-24 of 4 August 2015 in Case No. MEDE-C/C-15/0017, Acquisition of Humo NV, Story, TeVe-blad and Vitaya by De Persgroep Publishing NV.

13 Decision No. BMA-2015-C/C-31 of 30 September 2015 in Case No. MEDE-C/C-15/0017, Acquisition of Humo NV, Story, TeVe-blad and Vitaya by De Persgroep Publishing NV.

14 Guidelines of the Belgian Competition Authority of 26 August 2014 on the calculation of fines for undertakings and associations of undertakings as set out in Article IV.70, Section 1, first subsection of the Code of Economic Law for infringements of Articles IV.1, Section 1 and/or IV.2 of the Code of Economic Law or of Articles 101 and/or 102 TFEU. As is apparent from the Guidelines’ title itself, they were, in principle, only intended to apply to infringements of the prohibitions on cartels and abuse(s) of a dominant position.

15 Decision No. BMA-2015-C/C-79 of 23 December 2015 in Case No. MEDE-C/C-15/0035, The acquisition of Imtech Belgium Holding NV and Imtech Belgium NV by Cordeel Group NV.

16 Decision No. BMA-2015-I/O-69 of 30 November 2015 in Case No. MEDE-I/O-15/0030, Kinepolis Group NV/Utopolis (Utopia NV). The acquisition was notified although it did not meet the merger control turnover thresholds. The approval of the Belgian competition authority was, however, required following a commitment imposed by the Belgian Competition Authority upon the constitution of the Kinepolis joint venture, not to build or acquire any further cinemas without the prior approval of the Belgian Competition Authority.

17 Decision No. BMA-2016-IO-12 of 25 March 2016 in Case No. MEDE-I/O-15/0030, Kinepolis Group NV/Utopolis (Utopia NV).

18 Decision No. BMA-2016-C/C-03 of 28 January 2016 in Case No. MEDE-C/C-15/0043, The acquisition of the Jim Mobile client data of BASE Company NV, of VikingCo NV and VikingCo International NV of BASE Company NV and the shareholders of VikingCo International by Medialaan NV.

19 Decision No. BMA-2016-C/C-10 of 15 March 2016 in Case No. MEDE-C/C-16/0002, Merger of Delhaize NV and Royal Ahold NV.

20 Article IV.7, Section 1 Code of Economic Law.

21 Article IV.11 Code of Economic Law.

22 Article IV.8 Code of Economic Law.

23 Article IV.10, Section 5 Code of Economic Law.

24 Article IV.61, Section 2, 2° Code of Economic Law.

25 The Rules adopted by the General Assembly of the Competition Council regarding the simplified notification of concentrations of 8 June 2007 recommend contacting the College of Competition Prosecutors at least two weeks before notification (see Section III.i, infra). Until further notice, these Rules remain applicable also after the entry into force of Book IV of the Code of Economic Law.

26 Article 5, Section 4 of the Royal Decree on the notification of concentrations.

27 Annexed to the Royal Decree on the notification of concentrations. For the simplified procedure, form CONC C/C-V/S is used, which is annexed to the Rules adopted by the General Assembly of the Competition Council regarding the simplified notification of concentrations of 8 June 2007.

28 Article 4, Section 1 of the Royal Decree on the notification of concentrations.

29 Article 5, Section 2 of the Royal Decree on the notification of concentrations.

30 Article IV.10, Section 2 Code of Economic Law.

31 Ibid.

32 Article IV.10, Section 1 Code of Economic Law. In Case No. 98-C/C-11 of the Competition Council of 28 July 1998, Promedia CV/Belgacom Directory Services NV, Belgian Official Gazette 18 September 1998, p. 30,441, the Council ruled that an agreement that had not yet been approved by the works council was not sufficiently binding to be notified.

33 Article IV.10, Section 3 Code of Economic Law.

34 Article 3, Section 4 of the Royal Decree on the notification of concentrations.

35 Article 3, Section 2 of the Royal Decree on the notification of concentrations.

36 Article IV.10, Section 5 Code of Economic Law.

37 Article IV.70, Section 1 and Article IV.72 Code of Economic Law.

38 Article IV.10, Section 7 Code of Economic Law; See for a recent application also the decision No. BMA-2015-C/C-79 of 23 December 2015 in Case No. MEDE-C/C-15/0035, The acquisition of Imtech Belgium Holding NV and Imtech Belgium NV by Cordeel Group NV Cordeel, discussed above.

39 Article IV.71, Section 2 Code of Economic Law.

40 Article IV.71, Section 1 Code of Economic Law. See also decision No. BMA-2015-C/C-31 of 30 September 2015 in Case No. MEDE-C/C-15/0017, Acquisition of Humo NV, Story, TeVe-blad and Vitaya by De Persgroep Publishing NV, in which the Competition College ruled that the Guidelines on the calculation of fines may be used as guidance for the calculation of such fines.

41 Rules adopted by the General Assembly of the Competition Council regarding the simplified notification of concentrations on 8 June 2007.

42 Point II.3.2 of the Rules adopted by the General Assembly of the Competition Council regarding the simplified notification of concentrations of 8 June 2007 states that, in special circumstances, the simplified procedure cannot be applied. This can be the case where it is impossible to determine the exact market shares of the parties (e.g., on new or less-developed markets) or where markets with high entry barriers or a high degree of concentration are concerned. In decision No. BMA-2015-C/C-79 of 23 December 2015 in Case No. MEDE-C/C-15/0035, The acquisition of Imtech Belgium Holding NV and Imtech Belgium NV by Cordeel Group NV Cordeel, discussed above, gun-jumping was also considered to be a special circumstance to set aside the simplified procedure.

43 Point II.1 of the Rules adopted by the General Assembly of the Competition Council regarding the simplified notification of concentrations of 8 June 2007.

44 Article IV.63, Section 6 Code of Economic Law. Please note that Article I.1 Code of Economic Law defines working days as all calendar days with the exception of Sundays and statutory holidays. This means that Saturdays are in principle to be considered as working days. In comparison with what was the case under the former Competition Act, where the Prosecutor was given 20 working days to come to a decision and Saturdays were not considered to be working days, the deadline has thus been substantially shortened by the entry into force of Book IV of the Code of Economic Law.

45 Article IV.63, Section 3 Code of Economic Law. This criterion was widely interpreted in case law. In the Belgian Airports/Brussels South Charleroi Airport case, the Prosecutor refused the application of the simplified procedure merely because a third party voiced an objection against the concentration (Case No. 2009-C/C-27 of 4 November 2009, Belgian Official Gazette 22 January 2010).

46 Article IV.63, Section 5 Code of Economic Law. Strangely, this paragraph (‘doubts as to the permissibility’) does not use the same criterion as paragraph 3 (‘no objection’).

47 Article IV.63, Section 6 Code of Economic Law.

48 For example, Decision No. ABC-2014-C/C-03 of 26 March 2014 in Case No. CONC-C/C-13/0030, Tecteo/EDA – Avenir Advertising, which was notified under the simplified procedure but had to be renotified under the regular procedure as some of the market definitions were contested and the transaction raised multiple competition concerns according to the auditor.

49 Article IV.63, Sections 3 and 4 Code of Economic Law.

50 Article IV.58, Section 4 Code of Economic Law.

51 Article IV.58, Section 4 Code of Economic Law.

52 Article IV.60, Sections 1 and 2 Code of Economic Law.

53 Article IV.61, Section 2 Code of Economic Law.

54 Article IV.61, Section 3 Code of Economic Law.

55 Article IV.62, Section 1 Code of Economic Law.

56 Article IV.62, Section 2 Code of Economic Law. This deadline shall be extended by a period equal to the period used by the parties to present commitments, if any.

57 Article IV.62, Sections 3 and 4 Code of Economic Law.

58 Article IV.62, Section 5 and Article IV.60 Code of Economic Law.

59 Article IV.62, Section 6 Code of Economic Law. This deadline shall be extended by a period equal to the period used by the parties to present commitments, if any.

60 Article IV.62, Section 5 and Article IV.60 Code of Economic Law.

61 Court of Cassation, 22 January 2008, Tectéo/Brutélé.

62 Decision of the Brussels Court of Appeal of 19 November 2014 in Case No. 2013/MR/30, De Persgroep NV/Belgian Competition Authority and Corelio NV and Concentra NV.

63 Article IV.66, Section 2 Code of Economic Law.

64 Article 65 Code of Economic Law.

65 Article IV.79, Section 1 Code of Economic Law.

66 Article IV.79, Sections 3 and 4 Code of Economic Law.

67 Article IV.79, Section 5 Code of Economic Law.

68 Article IV.79, Section 2 Code of Economic Law. This was recently confirmed in the decision of the Brussels Court of Appeal of 19 November 2014 in Case No. 2013/MR/30, De Persgroep NV/Belgian Competition Authority and Corelio NV and Concentra NV.

69 Article IV.79, Section 2 Code of Economic Law.

70 Brussels, 25 January 2008, Tecteo, Brutélé, Case 2008/MR/1.