The European Antitrust Review 2015

Belgium: Competition Authority

Jacques Steenbergen

President of the Belgian Competition Authority

The first 10 months

In his contribution to The European Antitrust Review 2014, Stefaan Raes described the structure of the new Belgian Competition Authority (BCA). It started its activities in September 2013, and as such I can only look back on its first nine months. It is too early to see whether the reform delivers a swifter enforcement of the rules of competition the legislator and stakeholders expected, but we can already formulate a few initial comments and observations.

In its first 10 months, the competition colleges of the BCA will have taken decisions in one interim relief case, four non-simplified merger control procedures and one appeal case against a rejection of complaint decision. They will have finalised the draft decision in one complex infringement case (abuse of dominance), and granted a confidential number of leniency declarations. The BCA has also conducted dawn raids in two cases and gave an opinion to the telecom regulator as required under EU law.

The BCA has delivered, and is on track to deliver decisions within the much stricter time limits provided for in the new act. This is particularly important because the Court of Appeal of Brussels has in a judgment of 30 April 2014 decided that these time limits are binding and not indicative. The enactment of Book I of the new Code of Economic law in December 2013 (of which the competition rules constitute Book IV) has moreover unexpectedly reduced some time periods even more by introducing a new definition of working days (Saturdays will be calculated as working days). We expect the newly elected parliament to legislate that this definition will not continue to apply to competition cases in order to keep the calculation of time periods in line with European procedures.

We concluded discussions with the BIPT/IBPT (the telecom and postal services regulator) of a cooperation decree that allows for the exchange of confidential information, and the (not yet published) decree has already been signed by the King.

The BCA has done the following in difficult circumstances:

  • Setting up a new legal entity in a public law environment is never easy. The launching of recruitment procedures in particular proves cumbersome although we have the budgetary means to launch the recruitment of 12 staff members. We are therefore understaffed.

  • Migrating pending procedures into the new authority has brought them into phases in which the time periods become stricter and appeals against previous investigative measures are possible. As one might expect, this has provoked a wave of procedures. It became clear that the Court of Appeal could not decide them within expected time periods for cases to be assimilated with interim relief procedures. The legislator fortunately intervened with an amendment that suspends the statute of limitation for the duration of these appeal procedures.

The instructions in these cases were conducted under the previous Act, which provided that the College of Prosecutors report to the Council on their investigations, while it is expected to propose a decision under the new rules (a proposal that only binds the college in so far as it defines the scope of the objections). The College of Prosecutors could only be expected to transform reports and advanced draft reports into the statements of objections and draft decisions provided for in the new act within fixed time limits by using existing texts. As a result, drafts can be extraordinary long by expected standards.

Like most authorities in the present economic environment, the BCA receives an increased number of merger notifications, and a significantly higher percentage of cases cannot be dealt with in a simplified procedure.

When we look at the decisions that have been taken and at ongoing procedures, it is striking that several are concerned with the relations between the competition authority and sector regulations and regulators. In its merger control decision of 24 October 2013, in the Touring case, the Competition College decided, for example, that it could authorise the merger in light of the regulations applicable to the organisation of the target’s activities (driving licence exams and the technical control of cars) and the (ex post) enforcement powers of the relevant regulatory authority. However, in order to avoid ambiguity in respect of the exact scope of the obligations of the purchaser and the target under the relevant regulations, the decision has copied the commitments of the notifying parties towards the sector regulator into its clearance decision. The decision adds that these conditions will in principle remain valid as long as they are required under the sector rules.

President of the Belgian Competition Authority

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