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.

A pre-merger notification and approval for all concentrations above the legally established thresholds is 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 2016, 26 notifications were made and 26 final decisions were issued. Out of these final decisions, 20 were issued under the simplified procedure, five under the non-simplified procedure and one decision concerned a fine for non-compliance with commitments imposed in a previous decision.

Concentrations

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

Number of notifications

59

54

17

17

20

13

7

20

20

17

25

15

29

26

Number of final decisions

61

54

15

15

20

15

7

19

22

16

24

18

31

26

Number of non-simplified procedures

29

13

7

7

1

4

2

4

3

4

3

2

4

5

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.

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.7 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 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.8

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

Second, regarding the other two cinema complexes of Turnhout and Lommel, some 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 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.9 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 hyper markets, 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 in relation 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 problems on different small local markets for the sale of daily consumption goods resulted in serious doubts regarding the merger's admissibility. 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 hypothesis 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 on which the parties have 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 doubts about the merger's admissibility. The commitments concerned the transfer of eight Ahold, 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. The Ahold/ Delhaize merger has also been scrutinised and cleared by the US competition authorities, contingent upon the divestment of 86 stores in the US.

On 13 June 2016, the BCA imposed a fine on Nethys for non-compliance with the commitments it had made to receive approval of its acquisition of Editions de l'Avenir and l'Avenir Advertising.10 The Prosecutor presented the following complaints:

  • a Editions de l'Avenir's employees had not signed any confidentiality clauses before 27 May 2015, while the commitments required a communication to the BCA within 30 days from the completion of the acquisition (i.e., 29 April 2014). Through the confidentiality clauses, Editions de l'Avenir's employees committed not communicating any information concerning advertising in Editions de l'Avenir's newspapers made by a market player offering competing products to the products offered by Tecteo under the Voo brand to any other Editions de l'Avenir employee or any other undertaking of the Tecteo Group;
  • b there was a delay in the communication of the list of persons that were bound by the confidentiality clause (which was subject to the same time delay);
  • c nethys could not decide on the timing that advertisers should respect for the communication of advertising materials that should be printed; and
  • d there had been a five-month delay in the communication of a report by an independent third party concerning the commitments.

The Competition College accepted the Prosecutor's complaints, with the exception of the third one on the timing for the communication of advertising materials. It imposed a fine of €63.296 on Nethys, which took into account two mitigating circumstances: first, the undertaking's immediate recognition of its non-respect of the commitments offered; and second, the absence of any established restrictive effects on competition.

On 8 November 2016, the BCA conditionally approved Bpost's acquisition of sole control over LS Distribution Benelux NV and AMP NV.11 Bpost is the historic postal operator in Belgium. AMP and LS Distribution Benelux were part of the Lagardère Services Distribution Group (Lagardère) and performed the following activities: (1) the logistical organisation of press distribution to points of sales; (2) retail sale of consumer goods; (3) the delivery of small packages and logistical goods; (4) the wholesale distribution of specific consumer goods.

The Prosecutor identified the following markets as affected markets: (1) the Belgian market for the distribution of addressed newspapers and magazines; (2) the Belgian market for the logistical organisation of the distribution and collection of press articles to press outlets for individual sales; (3) the Belgian market for the offering of press subscription management services; (4) the Belgian market for the retail sales of stamps; (5) the Belgian market for the national standard deliveries of small packages excluding the B2B segment; (6) the Belgian market for postal services.

The Competition College confirmed the affected markets identified by the Prosecutor and stated for the Belgian market for the national standard deliveries of small packages that it would look at the merger's impact on the B2X and C2X segments and deliveries via PUDO points. In its competitive analysis, the Competition College took into account the reinforcement of Bpost's dominant position in the market for the distribution of addressed newspapers and magazines and AMP's dominant position in the market for logistics organisation and the distribution of newspapers and magazines to points of sale for individual sales. However, the Competition College also stated that Bpost and the target undertakings had been offering mainly different services before the merger. The competitive pressure that Bpost and the target undertakings were exercising on each other before the merger was therefore more a consequence of the substitutability and competition between the different distribution channels. The commitments were mainly designed to attain the following objectives: first, to prevent Bpost from restraining competition between the different distribution channels (i.e., addressed and unaddressed distribution) by making less attractive those services that were not governed by the concession agreement between Bpost and the Belgian state concerning the distribution of addressed newspapers that already existed before the merger; second, to prevent better treatment of the new group's distribution of press services in its points of sale in comparison to other points of sale; third, to assure a qualitative delivery of points of sale. Finally, the Competition College noted that it would go too far to impose a price ‘freeze' on the services offered by the new entity after the merger.

On 21 November 2016, the Belgian Competition College rejected the application for interim measures from Brouwerijen Alken-Maes NV for the suspension of the takeover of Brouwerij Bosteels by Anheuser-Busch InBev NV, one of the largest beer groups in the world.12 Alken-Maes was part of the Heineken group, and Bosteels was a small independent brewery with the brands Triple Karmeliet and Kwak. The acquisition of Bosteels did not have to be notified, as its turnover was significantly lower than €40 million. Alken-Maes argued in its application that the acquisition as such should be qualified as an abuse of A-B InBev's dominant position. The Competition College decided that there was insufficient evidence that the acquisition resulted in restrictions on competition, which could be distinguished from the mere effects of the concentration and which could be prima facie qualified as an abuse of a dominant position. An appeal has been lodged by Alken Maes. It has to be noted that Belgian competition law, unlike the EU Merger Regulation, does not explicitly provide that antitrust rules do not apply to concentrations.

The Belgian Competition Authority approved Cebeo's acquisition of the exclusive control over Group Cheyns NV and Cheyns NV on 14 December 2016.13 The parties were active in different markets. First, as regards the upstream market for provision of electrical materials, the Prosecutor confirmed the market definition in case Rexel Belgium SA/La Grange Beheer SA - Immo LG SPRL and held that the following national markets could be distinguished:

  • a electrical installation materials;
  • b lighting;
  • c cables and networks;
  • d HVAC products;
  • e security and communication products; and
  • f electrical appliances.

Direct sales by manufacturers were excluded from these markets. Second, with regard to the (national) upstream markets for provision of professional equipment or tools, the BCA confirmed the relevant product markets as determined in the European Commission's decisional practice (which made a distinction on the basis of users of the product and on the basis of the functioning of the product). Third, with regard to the (national) downstream market for the wholesale of electrical material, the Prosecutor noted that (1) sales by specialised distributor-wholesalers exercise competitive pressure on the downstream market for the wholesale of electrical materials, but he would not include these sales into the relevant market for the purpose of this case; (2) the results of the inquiry did not permit the conclusion that direct sales by manufacturers should be included in the relevant market; (3) sales by pure online players should not be included in the relevant market. Fourth, electrical appliances were the only electrical material products that belonged to a separate market other than all the other categories of electrical materials in the downstream market for the wholesale of electrical appliances. Fifth, the definition of the downstream markets for the wholesale of professional equipment or tools was left open. Out of all these markets, the Prosecutor held that only the following markets were affected: (1) the upstream market for the provision of cables, (2) the upstream market for the provision of technical installation material, and (3) the downstream market for wholesale of electric material. However, effective competition would not be impeded on the latter market for the following reasons:

  • a There would be a sufficient choice of suppliers after the concentration.
  • b The customers' price sensitivity.
  • c There was no need for a local branch, as clients of the wholesalers mostly placed their orders by phone or via a website, deliveries were often made throughout the whole national territory, with competitive ‘pressure' by specialist-wholesalers and by pure online players.
  • d There were low barriers to entry.
  • e There was a predominantly positive reaction to the concentration from manufacturers and other wholesaler-distributors.
  • f The Competition College confirmed the Prosecutor's position concerning the affected markets and decided that the concentration would not impede effective competition on the two upstream markets for the provision of cables and of technical installation material and on the downstream market for the wholesale of electrical material.

On 21 December 2016, the Belgian Competition Authority issued a decision in the pharma sector following the notification of McKesson group's acquisition of exclusive control of Belmedis, Espafarmed, Cophana, Alphar Partners and of a majority interest in Sofiadis.14 The case was referred to the Belgian Competition Authority on the basis of Article 4(4) of the Merger Regulation, at the notifying party's request.

The Prosecutor decided that the market for full-line pharmaceutical products was affected horizontally, while the market for retail sales was affected vertically. The Prosecutor concluded that the concentration might significantly impede effective competition on the Belgian market for the wholesale distribution of full-line pharmaceutical products because of important coordinated effects that would not be counter-balanced by the efficiency gains following the acquisition. The proposed concentration would have as an effect that a collective dominant position would be created on the Belgian market for the wholesale distribution of pharmaceutical products, as the structural characteristics of the market concerned might bring about tacit coordination in this market. The Competition College followed the Prosecutor's assessment and decided there were serious doubts about the admissibility of the concentration and consequently decided to open a Phase II procedure.15 On 20 April 2017, the Belgian Competition College conditionally approved the acquisition. The parties offered a commitment regarding the divestment of one of their depots in the Ghent area together with all relevant related assets and commitments to protect the opportunities of smaller players among the full-line wholesalers. It is noteworthy that the Competition authority started a cartel investigation and carried out dawn raids based on the information received during the (pre)notification of this transaction.

III THE MERGER CONTROL REGIME

As mentioned in the Introduction, concentrations must be notified in Belgium if the undertakings concerned, taken together, have a total turnover of more than €100 million in Belgium,16 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'17 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.18 The parties must obtain approval for the proposed concentration before it can be implemented.19

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.20

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 highly recommended21 and has become standard practice. It is also not uncommon that the Authority asks the parties' consent to start its investigation and send out requests for information to third parties already during the pre-notification stage. 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 e-mail, 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,22 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'.23 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;24 otherwise the notification cannot have any effect.25 In general, the notification obligation falls on the party acquiring control through the concentration.26 In the case of a merger between two formerly independent companies, the obligation falls on both parties.27 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.28

The notification must be made in Dutch or in French.29 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.30 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 e-mail to the Secretariat of the Belgian Competition Authority for the attention of the Prosecutor-General, using the e-mail address indicated on the Belgian Competition Authority website.31

As is the case in European merger control, the parties must suspend the implementation of the merger until it has been cleared.32 Failure to respect this standstill obligation can result in fines of up to 10 per cent of the notifying parties' annual turnover.33 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.34 Failure to notify a merger can result in fines of up to 1 per cent of the notifying parties' respective annual turnovers.35 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.36

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.37

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 examines the merger and decides whether to authorise it (and not the Competition College); 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:38

  • 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.39

As mentioned above, the Prosecutor has only 15 working days from the notification40 to decide whether the conditions for the simplified merger procedure apply and whether the concentration raises any objections41 or doubts as to its permissibility.42 If the Prosecutor fails to come to a decision before the deadline, the merger is deemed to have been approved.43 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.44 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.45

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.46 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.47 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.48 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.49 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.50 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.51 Furthermore, the Prosecutor must submit its revised draft decision within 30 working days of the decision.52 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.53 A hearing must be held no less than 10 working days after the submission.54 The Competition College must decide whether to approve the merger within 60 working days of initiating the Phase II procedure.55 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.56 However, the Supreme Court57 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.58

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.59 Before publication, the President of the Competition College will decide which, if any, passages in the decision are confidential,60 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.61 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.62

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.63 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.64

An appeal to the Court of Appeal does not suspend the Competition College's decision,65 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.66 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.

Regarding timing, it should be noted that the deadline imposed on the prosecutors to issue decisions in simplified merger filings has been shortened to 15 working days in 2013, with it being understood that Saturdays were also considered as working days. Since the act of 29 June 2016, however, Saturdays are no longer considered working days for the calculation of the terms in merger control proceedings. The term of 15 working days is, however, still very short for the investigatory team. Therefore, it is important to start pre-notification talks, which can take months, well before the actual merger filing. On the other hand, as more and more issues are investigated and solved during the pre-notification period, decisions are often taken before the end of the legal deadline for the decision. In case of a simplified procedure, it is also advisable to start pre-notification contact to obtain as much certainty as possible about the Prosecutor's preliminary view on whether the conditions for a simplified procedure have been 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 & CONCLUSIONS

In 2015, 2016 and first half of 2017, the number of notifications filed and the notification decisions issued has significantly increased when compared to previous years. Moreover, a significant number of concentrations have been 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, and one for non compliance with commitments given. 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, do not timely reply to requests for information in merger proceedings or do not comply with commitments imposed, 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 admissibility 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 also structural remedies have been imposed (e.g. in the Delhaize/Ahold, the Kinepolis/Utopolis or the McKesson/Belmedis cases).

The Code of Economic Law provides that the Belgian Competition Authority shall carry out an assessment of the two merger filing thresholds every three years, taking into account, inter alia, the economic impact and the administrative burden for undertakings. The BCA stated that in view of the relatively high notification thresholds in Belgium, the BCA sees no reason to raise these thresholds. If a reduction were to be envisaged, the Authority would advocate lowering the thresholds in certain specific sectors, with a local catchment area, as is for example the case in France. Also an information obligation for concentrations below the thresholds, that are important for the Belgian market could possibly be considered according to the Authority. However, it first launched a stakeholder consultation on the existing thresholds and the need to modify them, the outcome of which is not known yet.

Finally, note that 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.

CARMEN VERDONCK

ALTIUS

Carmen Verdonck is a partner heading the competition team at ALTIUS. She advises a wide range of domestic and multinational clients on all aspects of Belgian and EU competition law, including strategic alliances, cartel investigations, the establishment and operation of distribution systems, technology licensing, abuses of dominant positions and state aid. She has also assisted various multinational clients in the design and implementation of compliance programmes and training courses. In merger control cases, Ms Verdonck has assisted numerous clients in obtaining merger control clearance from the Belgian Competition Authority and the European Commission, and in the coordination of merger filings in various other countries. She holds a bachelor's degree in law from the Université de Namur, a master of laws from the University of Leuven (1995 Lic Jur magna cum laude) and an LLM in European law from the University of Bristol (1996). She has been a member of the Brussels Bar since 1996, and is First Vice President of the International League of Competition Law, former President of the Association pour l'Etude du Droit de la Concurrence; a member of the legal committee of the Belgian Franchising Federation and a member of the Women's Competition Network. Ms Verdonck has been appointed as assessor in the newly formed Belgian Competition Authority since 2013. Ms Verdonck is also maître de conférences at the University of Liège and lectures on Belgian competition law in the LLM programme in European competition and IP law. She has written numerous articles and other publications on competition law.

Steffie De Cock

ALTIUS

Steffie De Cock is an associate in the competition and commercial team at ALTIUS. She specialises in all aspects of competition law at the European and national levels, including cartel cases, distribution networks, abuse of dominance, and state aid. She also assists domestic and multinational clients in the setting-up of compliance programmes. Steffie has experience in drafting and reviewing a broad range of commercial contracts. In merger control cases, she assisted various clients in obtaining merger control clearance from the Belgian Competition Authority. Ms De Cock obtained her master of laws at the University of Leuven. Afterwards she complemented her master of laws with a master complémentaire en droit européen from the University of Brussels. In 2012, Steffie followed an LLM programme at the University of Stellenbosch, South Africa. Furthermore, Steffie was the winner of the best advocate general award at the ELMC pleading competition regional final.

Altius

Avenue du Port 86 C

Box 414

1000 Brussels

Belgium

Tel: +32 2 426 14 14

Fax: +32 2 426 20 30

carmen.verdonck@altius.com

www.altius.com

1 Carmen Verdonck is a partner at ALTIUS and Steffie De Cock is an associate at ALTIUS.

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. In May 2017 the Authority launched a consultation of stakeholders on the thresholds for notification and an assessment whether they should be changed.

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 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.

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

9 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.

10 Decision No. ABC-2016-I/O-18 of 13 June 2016 in Case No. CONC-I/O-15/0025, follow-up of the Decision No. ABC-2014-C/C-03 of 26 Mars 2014.

11 Decision No. BMA-2016-C/C-32 of 8 November 2016 in Case No. MEDE-C/C-16/0021, the acquisition of the sole control over LS Distribution Benelux NV and AMP NV by Bpost NV under public law.

12 Decision No. BMA-2016-V/M-36 of 21 November 2016 in Case No. MEDE-V/M-36, request for interim measures regarding the acquisition of Brouwerij Bosteels by ABI.

13 Decision No. ABC-2016-C/C-38 of 14 December 2016 in Case No. CONC-C/C-16/0035, the acquisition by Cebeo NV of the exclusive control of the Group Cheyns NV and Cheyns NV.

14 Decision No. ABC-2016-C/C-39 of 21 December 2016 in Case No. CONC-C/C-16/0038, the acquisition of the sole control by the McKesson Group of Belmedis SA, Espafarmed SLU, Cophana SA and Alphar Partners and of a majority participation in the control of Sofiadis.

15 Article IV.61, Section 2, 3 of the Code of Economic Law; Article IV. 62 of the Code of Economic Law.

16 Article IV.7, Section 1 of the Code of Economic Law.

17 Article IV.11 Code of Economic Law.

18 Article IV.8 Code of Economic Law.

19 Article IV.10, Section 5 of the Code of Economic Law.

20 Article IV.61, Section 2, 2 of the Code of Economic Law.

21 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.

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

23 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.

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

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

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

27 Ibid.

28 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.

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

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

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

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

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

34 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.

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

36 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.

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

38 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 gun jumping was also considered to be a special circumstance to set aside the simplified procedure.

39 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.

40 Article IV.63, Section 6 Code of Economic Law. Please note that Article I.1 Code of Economic Law defined working days as all calendar days with the exception of Sundays and statutory holidays. This meant that Saturdays had to be considered as working days. An Act of 29 June 2016 changed the definition of working days again to also exclude Saturdays.

41 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).

42 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').

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

44 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.

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

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

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

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

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

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

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

52 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.

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

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

55 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.

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

57 Cour de Cassation, 22 January 2008, Tectéo/Brutélé.

58 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.

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

60 Article 65 Code of Economic Law.

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

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

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

64 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.

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

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