Belgian competition law now ECN+ conform

The ECN+ Directive aims to strengthen the independence of the competition authorities of the Member States and to empower them to be more effective competition law enforcers, thus ensuring the proper functioning of the internal market. Although Belgian competition law already meets most of the standards of the ECN+ Directive, a number of modifications or clarifications proved to be necessary. The most important changes are discussed below.

In addition, a major novelty unrelated to the ECN+ Directive, is the introduction of a filing fee for concentrations. This is a new feature in the more than 30 years of history of Belgian competition law.

I. Concerning merger control

With regard to merger control, the main change is the introduction of a filing fee for concentrations notified to the Belgian Competition Authority (hereinafter, the BCA). While thus far filings have always been free of charge, the new law provides for the payment of a flat fee of €52,350, reduced to €17,450 in case the simplified procedure applies. These amounts will be adapted on an annual basis.

In view of this two-tier fee, the new law also introduces the possibility for the parties to appeal a refusal to accept a simplified filing. If the Market Court finds that the decision is indeed unlawful, it may order the partial reimbursement of the filing fee.

II. Concerning investigations

When the BCA is faced with a refusal by the investigating judge to authorise a search, the new law introduces a special appeal procedure to the Criminal Division of the Brussels Court of Appeal.

The BCA will also be able to record the answers given by undertakings and associations of undertakings to questions from BCA's investigators in the course of a search. Where these answers are recorded electronically, the content of the recording will have to be transcribed in a report, a copy of which will have to be given to the interlocutor.

Concerning the validity of evidence, the new law foresees that evidence will only be considered irregular if (1) the law explicitly prescribes nullity for the irregularity committed, (2) the reliability of the evidence is affected or (3) the use of the evidence would be contrary to the right to a fair trial. In other words, as in Belgian criminal investigations, the so-called Antigoon-doctrine will now equally apply to Belgian competition law investigations (contrary to what the Brussels Court of Appeal had ruled in 2015 in the travel agencies case).

III. Concerning fines

Whereas the current Belgian Code of Economic Law only provides for the imposition of periodic penalty payments in the event of non-compliance with interim measures, the new law introduces the possibility for the BCA to also impose ‘standard’ fines for such non-compliance.

In addition, the new law will give the BCA the power to impose periodic penalty payments for procedural infringements as well, with a legal maximum of up to 1% of the average daily turnover in the previous business year for each day of delay of compliance (calculated from the day of the fining decision).

Furthermore, the new law reintroduces the possibility for the BCA to impose a sanction of up to 1% worldwide turnover for failure to notify a concentration before its completion. In view of the ECJ case-law in this respect, this would effectively allow the BCA to impose double sanctions on undertakings that fail to notify a transaction and subsequently jump the gun.

Finally, concerning the imposition of fines on associations of undertakings, the new law now specifies that where a fine is imposed not only on the association but also on its members, the turnover of the members fined should not be taken into account for the calculation of the association’s fine.

IV. Concerning confidentiality

Concerning confidentiality of information, the new law provides that information shared in leniency applications and settlements can only be used for the exercise of the rights of defence and in cases before courts that have a direct link with the BCA’s case.

The new law provides the possibility to conclude a negotiated disclosure agreement between the party with a right of access to the file and the party supplying documents or data (as an alternative to non-confidential versions). Such an agreement would have to be approved by the BCA.

V. Concerning leniency

In addition to the various changes to the Belgian Code of Economic Law, the provision in the Belgian penal code concerning bid rigging is amended to ensure that immunity extends also to criminal prosecutions. Immunity applicants will however need to provide the information regarding the infringements and other infringing parties to the public prosecutor as well (ie a leniency application to the BCA will not suffice).

Also worth mentioning in the context of leniency applications is the fact that applicants will be able to submit their applications in any official language of the European Union. The BCA will however be able to ask for a translation if the application was not made in Dutch, French or German.