Belgian Competition Authority
Belgium
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Belgian Competition Authority

Belgian Competition Authority

Belgium

Belgium: from the enforcer

Address: City Atrium, Rue du Progrès 50, 1210 Brussels, Belgium
Tel: +32 2 277 52 72
Fax: +32 2 277 53 23
Email: [email protected]
Web: www.belgiancompetition.be

Contacts

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Jacques Steenbergen
President
Email: [email protected]
Tel: +32 475 25 16 24

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Véronique Thirion
Competition Prosecutor General
Email: [email protected]
Tel: +32 473 88 72 43

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Alexis Walckiers (until 31 August 2020. Griet Jans temporarily assumed the role of Chief Economist from 1 September 2020)
Chief Economist
Email: [email protected]
Tel: +32 475 89 31 48

Yves Van Gerven
General Counsel
Email: [email protected]
Tel: +32 476 26 64 78

Questions and answers

How long is the head of agency’s term of office?

Six years.

When is he or she due for reappointment?

2019. The law provides for the President to remain in office until a replacement has been appointed.

Which posts within the organisation are political appointments?

The four board members and 20 assessors (part-time, of whom two, chosen in alphabetical order in their language group, sit with the president or assessor-vice president to constitute the Competition College that take the final decisions in formal infringement or merger control procedures) are appointed by the government at the proposal of the Minister of Economic Affairs after a selection exam by an ad hoc selection committee.

What is the agency’s annual budget?

Approximately €8.3 million, including the housing and support services rendered to the authority by the ministry of economic affairs valued at approximately €1.8 million.

How many staff are employed by the agency?

The agency employs 47 staff (excluding assessors).

To whom does the head of the agency report?

Every year the board presents a memorandum on priorities to the Minister of Economic Affairs who can make non-binding recommendations. His or her function, and that of the other board members, is assessed every two years by the Minister of Economic Affairs, who may make non-binding recommendations. His or her functioning will be taken into consideration in case he or she wishes his or her mandate to be renewed (renewable once).

Do any industry-specific regulators have competition powers?

No.

If so, how do these relate to your role?

Not applicable.

May politicians overrule or disregard authority’s decisions? If they have ever exercised this right, describe the most recent example.

No. The possibility to appeal against the prohibition of a concentration to the full cabinet was never used and was deleted in the 2013 reform.

Does the law allow non-competition aims to be considered when taking decisions?

Only to the extent that they may justify an exemption under article IV.1(3) of the Code of Economic Law, analogous to article 101 (3) of the Treaty on the Functioning of the European Union (TFEU), or the need to be taken into account pursuant to article IV.9 section 2 of the Code of Economic Law, analogous to article 2 (1) of the EU Merger Regulation.

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this? Has any competition decision by the agency been overturned?

In 2019, 2 decisions were overturned in court.

One appeal proceeding concerned the action for annulment brought by the company Proximus against the decision of 26 May 2009 of the former Competition Council imposing a fine for abuse of a dominant position. In a decision dated 9 October 2019, the Market Court ruled that the dawn raid of Proximus' premises pursuant to the 1999 Competition Act was illegal. The dawn raid was not subject to effective, ex ante or ex post review by an impartial court. This was contrary to the fundamental right to the protection of privacy and the inviolability of the home. The Court referred to two judgments of the Court of Cassation dated 26 April 2018 (stevedores and travel agencies cases) and two judgments of the Constitutional Court dated 10 December 2014 and 22 December 2011. The case is currently before the Market Court as regards the consequences of the unlawful dawn raids for the validity of the fine decision of the former Competition Council.

The other decision concerned the merger between the Bert and Claeys groups (which became Kinepolis). The Brussels Court of Appeals partially annulled a decision of the College of 2017 with respect to remedies imposed in 1997. Following the decision of the Court, the College has decided on 26 April 2018 to abrogate the need for a preliminary authorisation by the BCA in respect of expansion by organic growth by Kinepolis as from 26 April 2020. The Market Court had annulled the decision of the Competition Court of 26 April 2018 lifting the fourth condition for the creation of new complexes by Kinepolis for a transitional period of two years. In compliance with this judgment, the Auditorat has updated the investigation. On 25 March 2019, the Competition College decided to lift the fourth condition for the creation of small cinema complexes (seven screens or less and 1,125 screens or fewer), subject to certain restrictions. However, in a judgment dated 23 October 2019, the Market Court annulled this decision with regard to the limitation of the lifting of the fourth condition to small complexes. Nevertheless, the Court considered that an immediate and complete lifting of the fourth condition regarding organic growth (creation of new complexes) could limit effective competition in view of the potentially disruptive effect on Kinepolis’ competitors. To allow competitors to prepare, the Court referred the case back to the BCA for a proportionate, appropriate and effective transitional period.

Has the authority ever blocked a proposed merger?

The present agency was established in 2013 and has not yet prohibited a proposed merger, though its predecessor did.

Has the authority ever imposed conditions on a proposed merger? If yes, please provide the most recent instances.

Yes, frequently. In 2019:

  • partial abrogation of remedies in the Kinepolis decision on 25 March 2019; and
  • behavioural remedies in the Telenet Group/De Vijver Media decision of 13 May 2019.

Has the authority conducted a Phase II investigation in any of its merger filings? If yes, please provide the most recent instances.

The BCA conducted a Phase II procedure for the last time in 2017 in the McKesson/Belmedis merger.

Has the authority ever pursued a company based outside your jurisdiction for a cartel offence? If yes, please provide the most recent instances.

No, but it has one taken provisional measure against a sports federation based in Switzerland.

Do you operate an immunity and leniency programme? Whom should potential applicants contact? What discounts are available to companies that cooperate with cartel investigations?

Yes. Applicants should contact the competition prosecutor general at the secretariat of the authority.

Companies can be granted immunity or a reduction of fine of respectively, according to their ranking:

  • 30 to 50 per cent;
  • 20 to 40 per cent; or
  • 10 to 30 per cent.

Is there a criminal enforcement track? If so, who is responsible for it? Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

Only in respect of bid-rigging. The criminal justice institutions are responsible.

Are there any plans to reform the competition law?

The Act of 2 May 2019 enacted the new version of the competition rules. It brought a number of procedural changes. It also anticipated the transposition of the ECN+ directive by raising the cap for fines to 10% of the worldwide turnover.

The Act of 4 April 2019 introduced the rules on the abuse of economic dependency. The provisions concerning the BCA will only enter into force later in 2020.

When did the last review of the law occur?

In 2019, see supra.

Do you have a separate economics team? If so, please give details.

There is the chief economist (member of the board), the deputy chief economist and three economic advisors. They regularly meet with the economists in the team, who do not otherwise constitute a separate team.

Has the authority conducted a dawn raid?

Yes, in 2019, three dawn raids were conducted, one at the request of the European Commission.

Has the authority imposed penalties on officers or directors of companies for offences committed by the company? If yes, please provide the most recent instances.

This power was only granted in 2013 and has not yet been used.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

The undertakings concerned (for example, the buyer and the target) should together have a consolidated total turnover in Belgium of more than €100 million, and at least two of them should each have a turnover in Belgium of at least €40 million (article IV.7 (1) of the Code of Economic Law).

Are there any restrictions on investments that involve less than a majority stake in the business?

No, unless they would qualify as a restrictive agreement in the meaning of article IV.1 of the Code of Economic Law, analogous to article 101 TFEU, or an abuse of dominance in the meaning of article IV.2 of the Code of Economic Law, analogous to article 102 TFEU.


Belgium: from the enforcer's competition economists

Address: EFTA Surveillance Authority
Competition and State Aid Directorate, 35 Rue Belliard, Brussels, B-1040, Belgium
Tel: +32 2 286 1811
Email: [email protected]
Web: www.eftasurv.int

Contacts

Gjermund Mathisen
Director
Competition and State Aid
Tel: +32 2 286 1860
Email: [email protected]  

Emily O’Reilly
Deputy Director for Competition
Competition and State Aid
Tel: +32 2 286 1886
Email: [email protected]

Questions and Answers

How many economists do you employ?

There are six economists currently employed in the Competition and State Aid Directorate (CSA), including the deputy director.

Do you have a separate economics unit?

Yes, the Authority’s Competition and State Aid Directorate employs full-time economists organised in a separate chief economist team that is housed within the CSA Directorate.

Do you have a chief economist?

Yes, the CSA‘s chief economist is Fiorenzo Bovenzi.

To whom does the chief economist report?

To the CSA’s director.    

Does the chief economist have the power to hire his or her own staff?

 No.

How many of your economists have a PhD in industrial economics?

One (the chief economist).

Does the agency include a specialist economist on every case team? If not, why not?

No. Whether a specialist economist is assigned to a case depends on the complexity of the case or on whether economic expertise is needed.

Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?

Depending on the complexity of the case, one or more economists may be assigned directly to the case team. In such cases, another economist may review the analysis carried out by the case team, working as a ‘second pair of eyes’.

How much economics work is outsourced? What type of work is outsourced?

The CSA does not typically outsource any work, although it may, from time to time, commission studies and reports from academics and consulting firms.

Organisation chart

ESA's organisational chart can be accessed on our website here.

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