The European Antitrust Review 2014 Section 3: Country chapters

Belgium: Competition Council

A new Law on the Protection of Economic Competition was enacted on 3 April 2013 (Book IV of the Belgian Code of Economic Law), and is likely to enter into force in autumn 2013. It will overhaul the structure of the Belgian Competition Authority. The Competition Council (both the College of Competition Prosecutors (the investigative body) and the Assembly of Councillors (the decision-making body)) and the Directorate-General for Competition will cease to exist. The new Belgian Competition Authority (BCA) will be an independent administrative agency. Its board will be composed of the president of the BCA, the competition prosecutor general, the chief economist and the general counsel.

Decisions ordering restrictive practices to be ceased, imposing fines, ordering interim measures and admitting mergers (or not; subject to conditions or not) are taken by the College of Competition. It is composed of a panel of three judges, the president of the BCA and two other persons working part-time for the BCA, the latter being selected per case, in alphabetical order, out of a list of 10 persons if the language of the case is Dutch or a list of another ten persons if the language of the case is French.

In matters of restrictive practices, the College of Competition hears the undertakings concerned, as well as complainants and third parties, if any, on the basis of a draft decision which has been prepared by the competition prosecutor. The investigation is conducted by a team working under the supervision of a competition prosecutor. At the outset of the investigation, the competition prosecutor submits a statement of objections to the undertakings under investigation, and gives them access to the file. After having examined their defence, the competition prosecutor files his or her draft decision with the College of Competition. This implies that the debate before the College of Competition as such can be focused on the remaining issues.

By gradually limiting the debate as the procedure advances, and by imposing time limits on undertakings and on the competent body of the competition authority alike, the Law wants to ensure that proceedings lead to a final decision by the BCA within a shorter time frame than is the case at present.

As far as restrictive practices are concerned, two novelties can be noted. One is the possibility to end the investigation, at the level of the competition prosecutor, by means of a settlement, with a reduction of the fine by up to 10 per cent of what it could have been under the fining guidelines after a fully fledged procedure.

Another novelty, not really applauded by the business community, is the possibility for the competition prosecutor to prosecute the physical person who has negotiated or concluded the cartel on behalf of the undertaking, and for the College of Competition to impose upon him or her a fine of up to €10,000.

The College of Competition can also order interim measures. But contrary to the procedure under the old Law on the Protection of Economic Competition (currently still in force), a request for interim measures is not investigated by a competition prosecutor and his team. It is immediately decided upon by the College of Competition, after a contradictory debate between the parties, within an even stricter time frame than cases on the merits.

The distinction between investigation on the one hand, and decision-making by the College of Competition on the other hand, is also maintained in cases of merger control, in both the first and second phases.

Like the president of the French Competition Authority, the president of the BCA has significant powers in representing the BCA in international and European institutions and in matters of advocacy in the large sense, not only with regards to the business community but also in relation to the government. He will also represent (assisted by the general counsel) the BCA in the appeals against the decisions of the College of Competition, heard by the court of appeal in Brussels. In that way, the issue raised by the VEBIC judgment of the Court of Justice is solved.

Priorities of competition policy will be determined by the board on a yearly basis. The competition prosecutor general will decide which concrete cases will be handled. In view of the investigations which are being conducted at present, it is safe to predict that the first cases to be decided by the BCA will concern retail products sold by supermarkets and the production of electricity on the wholesale market. Whether the new BCA will be successful depends to a large extent on the talented people it will be able to attract.

The present government and parliament want the new BCA to also play an atypical role for a competition authority (Book V of the Belgian Code of Economic Law). When the Observatory on Prices (a government body within the Federal Ministry for the Economy)is of the opinion that a problem concerning prices or margins, an unusual price evolution or a structural market problem exists, it files a report with the College of Competition of the BCA, either at its own initiative or at the request of the minister. Subject to the condition that it is urgent to prevent a situation that can cause serious, immediate and near-irreversible harm to the undertakings or consumers whose interests are being violated, or to prevent a situation which can be detrimental to the general economic interest, the College of Competition can then impose measures in order to put an end to the situation.

These measures are temporary, with a maximum duration of six months. Although the law doesn’t explicitly mention it, there is an understanding that the measure which the government primarily had in mind when submitting the bill to parliament is an upper limit on the price. The measures can be appealed before the court of appeal in Brussels. The measures are interim measures or provisional measures in the sense that, when they are being ordered, the minister for the economy has to propose to the federal government that structural changes of the functioning of the market in the sector concerned be implemented.

To be perfectly clear, it should be stressed that the measures ordered by the College of Competition of the BCA under Book V of the Code of Economic Law are to be ordered regardless of whether proof or the probability of a cartel or an abuse of dominant position, in the sense of Art. 101 and 102 TFEU and their counterparts in Belgian law, can be established.

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