GCR 100 - 17th Edition

Belgium

10 January 2017

Belgium

A handful of dedicated Belgian practices are making their mark in a competition bar otherwise dominated by international firms and EU-focused boutiques.

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Elite

ALLEN & OVERY boasts a strong Belgian practice to complement its EU competition team. Led by the widely respected Dirk Arts, the team is particularly heavy on merger advice. Arts works alongside counsel Wouter Devroe, who is also a professor at the University of Leuven and one of 20 rotating external assessors in the authority’s decision-making college. The practice is completed by five associates, with another two expected to join in September 2016. Besides this dedicated competition staff, litigation partner Tom Schoors is working more on competition cases as private enforcement in Belgium increases.

The team advised De Vijver Media on a restructuring in which rival Telenet acquired a 50% stake in the Flemish media company. The case was the first since 2010 in which the remedies were purely behavioural, including a commitment to license content on fair, reasonable and non-discriminatory terms. The firm also represented Dutch telecoms company KPN in the sale of its Belgian subsidiary BASE to Telenet for €1.125 billion. Other high-profile deals include US supermarket chain Ahold merging with Belgian multinational Delhaize, a deal ultimately cleared with remedies, and Kinepolis’s acquisition of Utopolis.

The firm represents broadcaster SBS in a dispute over wholesale access to the broadcast rights of the cyclo-cross Superprestige race. SBS initially owned the rights but after closing down its sport broadcast service transferred them to Telenet, which does not offer these highlights for wholesale access and instead requires viewers to buy its decoder. Rival broadcasters claim that this is a restrictive practice.

FRESHFIELDS BRUCKHAUS DERINGER’s competition practice continues to rank among the elite at both the EU and national levels. The Belgian practice is led by Who’s Who Legal: Competition nominees Thomas Janssens and Laurent Garzaniti, both of whom also appear before the European Commission. Another seven lawyers are Belgium-qualified and work across EU and domestic matters.

The firm represented Delhaize in the supermarket hub-and-spoke cartel and obtained the lowest fine handed out to the three main supermarket chains involved. Freshfields also advised elevator manufacturer ThyssenKrupp before both the commission and the national courts, where it was found to have participated in a cartel. The commission has sued the companies for damages in the Belgian courts, but the case brought by the Belgian state and the Flemish Region against the same cartel was dismissed in April 2015.

The group represents cement maker Holcim in its appeal against the Belgian Competition Authority’s decision that multilateral standard-setting for concrete and slag markets constituted a restrictive practice. The firm is also advising Immoweb, an internet-based property-finding platform, which has been accused of abuse of dominance in relation to its use of most-favoured-nation clauses in its contracts with software providers. The team also works on deals for Belgian clients with a European flavour. It represented Telenet/Liberty Global during its €1.14 billion acquisition of BASE, which required an in-depth investigation by the European Commission and resulted in extensive remedies, including Telenet’s sale of its and BASE’s stake in Mobile Vikings and JIM Mobile to Medialaan. The remedies needed the approval of the Belgian authority and Freshfields represented Telenet in this process.

STIBBE’s Belgian practice is led by partners Hendrik Viaene and Peter Wytinck, who are supported by seven associates. All the lawyers work on both domestic and international work, with just under half of their caseload focused on purely Belgian matters. The firm has worked on the authority’s highest-profile cases, including its two major settlements and several appeals against the legality of dawn raids conducted in different sectors.Stibbe represented Carrefour in the long-running supermarket-supplier cartel that centred on home and beauty products. The case was the first settlement agreed by the authority with all 17 participants agreeing to the deal. An appeal on the legality of the dawn raids conducted by the authority was due to be heard by the Supreme Court, but the settlement was agreed before hearings could begin.

Other cartel cases also have included appeals against the dawn raid procedure. Stibbe currently represents the Belgian Travel Organisation against accusations of coordination of surcharges for business travel. The court of appeals prevented the authority from using any evidence obtained either from, or as a result of, the dawn raid, ruling there was insufficient legal protection for raided companies and a lack of judicial approval for the raids. The same outcome was reached on appeal against the dawn raid procedure in a cargo shipping investigation. The authority is investigating whether companies coordinated on published guidelines on the cost of having a container unloaded from a ship in port. The firm has also represented clients in the industrial batteries cartel case.

CLEARY GOTTLIEB STEEN & HAMILTON has come through a period of change in Belgium after Dirk Vandermeersch took a step away from the practice to focus more on academic research. Still a partner, Vandermeersch is currently among a panel of experts drafting new procedural laws for the authority, which parliament is expected to consider in autumn 2016. Partner Robbert Snelders also does domestic Belgian work, alongside five associates. Consultant Damien Gerard left this year to join the European Commission.

In the supermarket hub-and-spoke cartel, Cleary represented beauty-care supplier Henkel. The case was the first settlement agreed by the authority under new legislation enacted in 2013. The firm advised Exide Technologies in the industrial batteries case that also resulted in a settlement, a case complicated by the company’s having been the leniency applicant in the EU and involved in reorganisation proceedings in the US. The firm represents American Express Corporate Travel in the alleged coordination of business travel surcharges case. Large-scale mergers in recent years include Petercam’s merger with Bank Degroof that created Belgium’s largest independent financial institution. The firm represents the Belgium Institute of In-House Counsel and the French-Speaking Bar on a pro bono basis.

CONTRAST runs a Belgium-centric boutique practice with two partners, three counsel and nine associates – making it one of the biggest independent competition teams in Brussels. This independence has allowed the firm to win regular work as external counsel to the European Commission in several cases, both in Belgium and at the General Court and Court of Justice. This institutional link has extended to representing the European Banking Authority and the European Insurance and Occupational Pensions Authority in their first-ever court cases. The firm has also advised Belgium institutions at both a federal and national level.

In the supermarket cartel case, Contrast represented retailer Colruyt, one of Belgium’s three biggest supermarkets. The case was settled under the authority’s new scheme introduced in 2013, as was the industrial batteries cartel case, in which the firm represented Hoppecke. The firm beat a state aid case that the authority brought against the Flemish Agency for the Promotion of Agricultural Products and Fisheries, and obtained interim measures against the International Horse Federation on behalf of Global Champion, which had complained the IHF’s exclusivity conditions for entry into tournaments were anticompetitive.

COVINGTON & BURLING significantly boosted its Belgian competition practice with the addition in 2014 of partner Johan Ysewyn from Clifford Chance, supported by four associates. In the cartels sector, the firm worked on the only two penalised by the authority in 2015 – advising supplier Bolton Belgium in the domestic supermarket hub-and-spoke case and Battery Supplies in the industrial batteries case. Covington represented PSA Antwerp in the port cargo case. Dawn raids were originally conducted in 1996, but the statement of objections was issued only two years ago. The firm successfully argued that, because there was neither prior judicial authorisation of nor an ex-post formal route of appeal against the dawn raids, they were illegal and evidence obtained from them could not be used.

Covington has been especially active in mergers recently. It represented both Westvlees and Covalis in a deal that created the Belgian Pork Group; Belgium publishing and advertising company De Persgroep in its merger with Sanoma Magazines; and French retail chain Fnac in its acquisition of electrical supplies retailer Darty. Covington also advised Medialaan on the purchase of assets of Jim Mobile and Mobile Vikings that needed to be divested as a result of Telenet/Liberty Global’s acquisition of rival mobile operator BASE.

JONES DAY has an extensive competition team with five Belgium-qualified partners and eight associates. Of counsel Laurent De Muyter is one of 20 external assessors who make up the authority’s decision-making college, and among the firm’s staff are two of the 20 lawyers who are admitted to argue civil cases before the Supreme Court. The firm has worked on several damages and follow-on litigation cases recently, acting for both plaintiffs and defendants.

It represented complainant BASE against dominant telecoms company Belgacom in a damages case that lasted for nearly 10 years and included approximately 30 hearings, eventually resulting in a €120 million settlement to BASE. Jones Day also advises MasterCard in a follow-on damage claim by food retailer Delhaize after a decision by the European Commission that MasterCard’s fee structures restricted competition. The firm has a particular focus on regulated industries and counsels several market leaders in abuse of dominance claims. Bpost, the national postal service, is a regular client, as is energy company EDF. The firm has recently branched into state aid and worked extensively with the Walloon region’s main investment company.

LINKLATERS has nine competition practitioners who are members of the Belgian bar. Gerwin Van Gerven is the partner at the top, but focuses largely on EU matters, while Thomas Franchoo takes the lead on national matters. The firm’s very active mergers and acquisition practice feeds into the competition practice, resulting in a lot of deal work, but not to the exclusion of other types of cases. Linklaters represented food retailer Delhaize during its merger with Ahold and advises a third party in the cinema merger between Kinepolis and Utopolis. Linklaters counselled energy company Fluxys when it acquired a larger stake in the interconnector used to transport gas between Belgium and the UK.

In abuse of dominance cases, Linklaters has advised Dow Chemicals and De Beers in the diamond sector after complaints were made against the companies to the Belgian Competition Authority. The firm represented cosmetic manufacturer and supplier Nivea in the supermarket cartel investigation. In state aid, the firm has represented Belgian bank KBC in a case that resulted from the public rescue of the banks during the financial crisis.

OLSWANG has a competition practice led by Dirk Van Liedekerke, described by a fellow lawyer as “technically, the best of us”. This technical skill comes to the fore with the firm’s biggest and longest-standing client, telecoms company Proximus, previously Belgium’s national operator and known as Belgacom. The firm represented the company for the duration of its 10-year damages case that centred on the termination rates that companies charge each other for mobile-to-mobile calls, and on issues of wholesale access to broadband and local loop unbundling services. The authority raided Belgacom’s office and wanted to copy the entire email inbox of certain employees and the hard drives of others, including in-house counsel, but the court confirmed the privilege of in-house counsel.

Olswang worked with Olivier Bertrand, the Burger King master franchisee in Belgium, when it acquired rival burger joint Quick. The deal involved local market analysis and a debate about the market definition and whether rivals included all fast food, or just burgers. The case concluded with a divestment required in one location. The firm also defended ZTE against a complaint by patent assertion entity Fringo, and cash and carry retailer Makro in the supermarket-supplier hub-and-spoke case.

Denis Fosselard heads ASHURST’s Brussels competition practice, but fellow partner Annick Vroninks takes the lead on domestic cases. The Belgian team is composed of four partners, one counsel and four associates. The firm advises the European football association, UEFA, against complaints in Brussels and Paris courts about its Financial Fair Play rules restricting clubs’ expenditures and third-party ownership of individual players. Ashurst also represented Electrabel against the authority’s allegation that it abusively withdrew capacity on the day-ahead exchange market. The enforcer imposed a fine, but it was reduced to less than 1% of the authority’s original recommendation. DP World is a client in the cargo-handling sector, in which the firm successfully argued the illegality of the original dawn raids. In the supermarket and suppliers cartel, the firm counsels Colgate.

BAKER & MCKENZIE has added three lawyers to its competition practice in the past 12 months, one of whom is Vincent Mussche, formerly at Freshfields and head of antitrust at conglomerate AGC Glass Europe. Partner Kurt Haegeman and counsel Joost Haans lead the team, which includes four associates. In the supermarket cartel, the firm represented Unilever. It is advising Utopia cinemas in its merger with Kinepolis, which gained conditional clearance from the competition authority following a Phase II investigation. The firm secured clearance for a joint venture between client D’leteren and Continental to develop keyless entry into cars, and has been added to the competition panel of cement manufacturer Holcim. CLIFFORD CHANCE suffered a blow in 2014 when its competition team defected to Covington & Burling. It is rebuilding with the well-liked Dieter Paemen leading the practice, which includes a litigation partner, a counsel qualified in both law and economics, and six associates. The team represents lift manufacturer Kone in damages litigation brought by the European Commission and the Belgian state, and L’Oréal in the supermarket-supplier hub-and-spoke cartel. The firm advised on the merger between real estate company Usi Group and insulation manufacturer Kingspan, and counselled Hertel during its merger with Altrad, which was cleared in the first phase despite the significant market shares of both companies.

Regarded as the preeminent state aid specialist of the Belgian bar, Annabelle Lepiece heads up CMS DEBACKER’s competition team, which advised the European Investment Bank on the establishment of a €45 million investment fund across the border in northern France. The Belgian practice took care of the state-aid issues while the firm’s French office wrote the contract. CMS also advised on the state-aid implications of the Walloon region’s Interreg projects, a European Commission initiative to encourage cross-border cooperation. The practice is justly proud of its expertise in air transport: it advised Charleroi airport during the European Commission’s investigation into potential incentives offered to Ryanair, and has worked with several other airports. In the supermarket cartel case the firm advised retailer Mestdagh.

After a strong performance in recent years, EUBELIUS is included among the recommended firms for the first time. Practice head Hans Gilliams works with one other partner and five associates. The firm is advising SNCB Logistics on its selection of a partner for its freight service business. Eubelius represented incumbent postal operator Bpost in an abuse of dominance investigation by the authority regarding its use of rebates, and advised the company on the acquisition of publisher and distributor Lagardère Travel Retail, which has retail outlets in train stations across Belgium and recently built up a network of 735 parcel pickup and delivery points. The firm also acted as counsel to telecoms company Proximus in a successful challenge before the Supreme Court to recognise the legal privilege of in-house counsel.

LIEDEKERKE WOLTERS WAELBROECK KIRKPATRICK scored a major coup in April 2015 when it hired a former judge and president of the Belgian Competition Authority, Stefaan Raes, as partner. He works alongside Jules Stuyck, head of the firm’s competition and European law practice, and two associates. The team advised global construction company Altrad on the Belgian aspects of its multi-jurisdictional acquisition of Hertel Holding’s industrial activities. Liedekerke represents ride-sharing company Uber before the courts after the company was enjoined on unfair competition grounds to stop offering its service. In conjunction with its litigation team, the firm represented Proximus in two cases before the Supreme Court: one regarding abuse of dominance and the second concerning access to the cable network. Liedekerke is currently working on an appeal on behalf of the Belgian state, which is seeking follow-on damages from elevator operators. A lower court dismissed the claim because it decided the cartel was not a price cartel and therefore the alleged harm was not proven.

VAN BAEL & BELLIS has a good reputation among the domestic bar. Its team is led by Peter L’Ecluse, backed up by four other partners, two counsel and 11 Belgium-qualified associates. The firm assisted communications company Nethys in its €26 million acquisition of the L’Avenir newspaper business from Corelio, a deal cleared with only behavioural remedies. The team has specialist expertise in life sciences and assists consumer association Test-Achats in its complaint alleging anticompetitive agreements between Hoffmann-La Roche and Novartis regarding drugs to treat age-related eye disease. The team defends Honda against follow-on actions as a result of an abuse of dominance finding in Belgium. Van Bael & Bellis also acted for EDF Luminus in a case that argued the tariffs charged by transmission network operator Elia distorted competition.

Firm

Head(s) of competition

Size

Who’s Who Legal nominees

Clients

Elite

Allen & Overy

Dirk Arts

1 partner

1 counsel

5 associates

Dirk Arts

Procter & Gamble, SBS, Mediahuis, Kinepolis

Freshfields Bruckhaus Deringer

Laurent Garzaniti

Thomas Janssens

2 partners

7 associates

Laurent Garzaniti

Thomas Janssens

Antwerp World Diamond Centre, Atlas Copco, Brussels Airport Company, Delhaize, Holcim, ThyssenKrupp, Immoweb, Solvay

Stibbe

Hendrik Viaene

Peter Wytinck

2 partners

7 associates

None

Carrefour, Belgian Travel Organisation, Belgian New Fruit Wharf, Belgian Pro League, Niko Group, Emrol, Tessenderlo Chemie, Thomas Cook  

Highly recommended

Cleary Gottlieb Steen & Hamilton

Robbert Snelders

Dirk Vandermeersch

1 partner

1 senior counsel

5 associates

None

Ackermans & van Haaren, American Express Corporate Travel, DeGrove, Henkel, Institute of Company Lawyers, Philip Morris Benelux, Exide Technologies, Fidea, JCDecaux, Petercam

Contrast

Filip Tuytschaever

2 partners

3 counsel

9 associates

None

AB Volvo group of companies, Volvo Cars Belgium, Samsung Benelux, Omega Pharma,Vandemoortele, VAB, Global Champions Tour/Global Champions League, VLAM, Lotus Bakeries, Hoppecke

Covington & Burling

Johan Ysewyn

1 partners

4 associates

Johan Ysewyn

Battery Supplies, Belgian Pork Group, Belgian Government, Bolton Belgium, De Persgroep, Euroscoop, Fnac, Medialaan, PSA Antwerp

Jones Day

Alexandre Verheyden

5 partners

2 of counsel

8 associates

Bernard E Amory

Bpost, BASE, De Beers, EDF, EDF Luminus, I-Magix, Isabel, MasterCard, Suez Environment, Telenet

Linklaters

Gerwin Van Gerven

1 partner

1 of counsel

7 associates

Gerwin Van Gerven

Beiersdorf, De Beers, Delhaize, Fluxys, Johnson & Johnson, KBC, Lesaffre, Nivea, Quick Step (Mohawk), the Belgian state, UGC

Olswang

Dirk Van Liedekerke

1 partner

8 associates

None

Proximus, Makro, Olivier Bertrand, Zte

Recommended

Ashurst

Annick Vroninks

4 partners

1 counsel

4 associates

None

CBR Cimenteries (Heidelbergcement), Electrabel (Engie), Total, Colgate, DP World, RTBF, Actis, Spadel, UEFA

Baker & McKenzie

Kurt Haegeman

Joost Haans

1 partner

1 of counsel

4 associates

None

D'Ieteren,Unilever,Mitsubishi Electric, FedEx, Recticel, Mobistar, Cobelfret, KBC

Clifford Chance

Dieter Paemen

2 partners

1 counsel

6 associates

None

KONE, Eneco, Fluxys, Sanoma, L’Oréal, the Belgian state

CMS DeBacker

Annabelle Lepièce

1 partner

3 associates

None

Swissport, Delhaize, Johnson & Johnson, European Investment Bank, SOGEPA, Link2Biz, Interreg, Walloon Region, Brussels Capital Region, Pau Airport, Lille Airport, SOWAER, EGIS, Mestdagh

Eubelius

Hans Gilliams

2 partners

5 associates

None

Bpost, SNCB, VRT, Proximus, Febelfin, TUI Group, Soliver, The Bank of New York Mellon, Koninklijke Belgische Touring Club

Liedekerke Wolters Waelbroeck Kirkpatrick

Stefaan Raes

1 partner

1 of counsel

2 associates

None

European Commission, ECHA, Frontex, Belgian Buildings Agency, Flemish Region and the Belgian State, Belgian Royal Federation of Handlers of Goods, DP World, Brussels Airlines

Van Bael & Bellis

Peter L’Ecluse

5 partners

2 counsel

11 associates

Kris van Hove

Aliaxis, Allianz, AstraZeneca, Bpost Bank, Coca-Cola Enterprises, EDF Luminus, Elanco, Honda Motor Company, Pfizer, Tecteo/Nethys

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