The European, Middle Eastern and African Antitrust Review 2018

Belgium: Competition Authority

14 August 2017

President

In 2016, the Belgian Competition Authority (BCA) was finally allowed to launch recruitments: we have since recruited 12 non-­administrative staff and one administrative staff. But 2016 has of course also been a year of decisions and actions in a wide range of fields.

The Investigation and Prosecution Service (IPS) again accepted two settlements: one regarding industrial batteries; and one regarding boat trips on the river Meuse (involving only SMEs). In order to achieve a competition culture in the Belgian socio-economic environment, it is important for SMEs to be reminded that the prohibition of hard-core restrictions, for example, also applies to small players. The IPS also closed a fine with commitments in which a real estate platform committed itself to terminate most-favoured customer clauses in agreements with software suppliers.

It was a very busy year for the IPS: we saw significant increases in the number of non-simplified merger control procedures and the number of pipeline cases concerning potential infringements.

More non-simplified merger control cases also mean more merger control procedures for the Competition Colleges. The College took its first Phase II decision in which it required the parties to divest two movie theatre complexes in order to authorise a merger between two groups. It opened a second Phase II procedure in the area of pharmaceutical wholesalers. The decision that attracted the most attention was the authorisation with structural remedies of the acquisition of the Delhaize supermarket chain by Ahold in a case that was referred to the BCA by the European Commission. The College also imposed for the third time a fine in a merger control procedure, this time because of the non-respect of a remedy.

In two rather special cases, the College decided not to grant interim measures. The first case involved a football club that was refused a license for the first and second divisions because it did not offer the required guarantees of financial stability. The case required that the College give a prima facie judgement on several aspects of the relations between competition law enforcement and arbitration. The second case was concerned with the possibility to oppose, by the application of the rules on abuse of dominance, a merger that fell well below the thresholds for a mandatory notification. The College decided that it could not, in view of Belgian case law, prima facie exclude the applicability of the provisions on abuse of dominance, but that it would only be justified to do so if there were elements of an abusive restriction of competition that could be distinguished from the mere effect of the concentration (appeal pending).

The advocacy policy focused on three projects already launched in 2015: information on the new leniency notice; assisting authorities in their fight against bid rigging; and better information for SMEs on compliance. As regards public procurement, we met with federal, regional and local authorities both in order to have a better understanding of their problems and constraints, and to offer assistance. The BCA published a guidance paper on compliance specifically aimed at SMEs that has already been discussed with a number of federations.

The BCA also gave more formal advice on envisaged legis­lation at the requests of parliament, the federal ministers for the economy and for justice, and the Walloon Region minister for housing.

The BCA continued to be an active contributor in European and international fora: for example, it hosted the annual meeting of the ECA, and its president co-chaired with the director general of DGComp an ad hoc workgroup on the working methods of the ECN in respect of novel challenges.

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