Belgian Competition Authority
Belgium
Abstract Shape Background
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

image 133
Jacques Steenbergen
President
Email: [email protected]
Tel: +32 475 25 16 24

Damien Gérard (from 1 December 2021)
Competition Prosecutor General
Email: [email protected]
Tel:  +32 2 277 52 72

image 135
Griet Jans
Chief Economist
Email: [email protected]
Tel: +32 497 85 39 77

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 48 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 Economy 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 Economy , 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 2020, four decisions were overturned in Court.

The first appeal procedure concerned the action for annulment brought by l’Ordre des Pharmaciens against the decision of 28 May 2019 of the Competition College imposing a fine of €1 million for infringement of article IV.1 CEL or article 101 TFEU. According to the decision, l’Ordre des Pharmaciens engaged in conduct aimed at foreclosing the market for services provided by pharmacists and/or preventing the development of the Medicare Market model. In a judgment of 8 January 2020, the Market Court found that the Order's conduct was a decision by an association of undertakings whose object was to restrict competition. On the other hand, the Court annulled the decision insofar as it set the amount of the fine at €1 million. The Court considered that article IV.70 CEL in the version of 2013 only allowed the imposition of a fine on associations of undertakings not exceeding 10 per cent of the association's turnover. For the calculation of the maximum ceiling of the fine applicable in the event of an infringement by an association of undertakings, the turnover of the members of the association cannot be taken into account. The Court referred the case back to the otherwise composed Competition College, which will take into account this interpretation of the maximum legal ceiling of article IV.70 of the CEL when determining the final amount of the fine. In this respect, it should be noted that, since the Law of 2 May 2019 amending Book IV CEL, the sum of the turnover of each member active on the market is taken into account when calculating the maximum legal ceiling of the fine to be imposed on an association of undertakings.

The second judgment of the Market Court concerns the case of Bpost postal rates, in which the former Competition College, by a decision of 10 December 2012, fined bpost €37.4 million for abuse of a dominant position. In the judgment of 10 November 2016, the Brussels Court of Appeal had annulled the decision of the Competition College for violation of the non bis in idem principle. The BIPT (the regulator) had already imposed a fine in 2011 that was nevertheless annulled in 2016. On 22 November 2018, the Court of Cassation ruled that the Court of Appeal had erroneously applied the non bis in idem principle. In an interlocutory judgment of 19 February 2020, the Market Court referred questions to the Court of Justice of the European Union for a preliminary ruling on the scope of the non bis in idem principle. In particular, the Market Court wishes to know whether in the field of competition law the application of this principle is not only subject to the conditions of identity of the facts and unity of the offender, but also to the condition of unity of the protected legal interest (in accordance with the Toshiba case law), in the light of the case law of the Court of Justice in other areas of law and the case law of the European Court of Human Rights.

The third procedure concerned the appeal against the decision of the Competition College of 28 July 2020 refusing the request for interim measures lodged by the club Virton against the Royal Belgian Football Association. The latter had refused to grant Virton a professional football licence for the 2020–2021 season. In a judgment of 23 September 2020, the Market Court annulled the decision of the College for failure to state reasons and referred the case back to the College, otherwise composed, for it to rejudge the request for interim measures. The BCA lodged an appeal with the Court of Cassation against the Market Court's decision, and in particular against the Court's finding that the requirement of article IV.72 § 4, paragraph 3 of the CEL is a non-mandatory time limit that is not sanctioned as such.

The fourth appeal procedure concerned the appeal for annulment in the Proximus case 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 unlawful because the dawn raid had not been subject to effective control by an impartial court. Subsequently, the parties clarified the consequences of the illegal dawn raid on the validity of the Competition Council's decision to impose a fine. In this respect, in its judgment of 7 October 2020, the Market Court recalled that data directly resulting from the dawn raid must be excluded from the investigation, whereas data gathered during the investigation and not directly or indirectly resulting from the dawn raid may be retained. Furthermore, the Court explained that data originating indirectly from the dawn raid may nevertheless be retained if it is shown that the dawn raid was not indispensable for access to such data and that it could have been collected in another way. In the present case, by applying the indispensability test, the Court partially annulled the fine decision for the year 2004. On the other hand, it found that the data for 2005 had been communicated by Proximus following requests for information and that those data could not be regarded as resulting indirectly from the dawn raid. These data can therefore be retained in the investigation. In the Court's view, there was no clear and obvious link between a dawn raid that was found to be unlawful and an investigative act undertaken subsequently in order to be able to consider that the latter would result from the dawn raid.

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 2020:

  • the decision of 12 November 2020 to lift – after a transitional period of 18 months – the limitation on organic growth of the Kinepolis Group imposed in 1997; and
  • behavioural remedies in the Delorge Group/Coox decision of 19 November 2020.

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 2020 in the Delorge/Coox 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 per cent of the worldwide turnover.

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

The Royal Decree on the entry into force of the amendments to the Code of Economic Law with regard to abuses of economic dependence was published in the Belgian Official Gazette on 12 August 2020.

According to this provision it is prohibited by one or more undertakings to abuse a position of economic dependence in which one or more undertakings find themselves, which may affect competition on the relevant Belgian market or in a substantial part thereof. The BCA is responsible for the enforcement of the prohibition.

When did the last review of the law occur?

This was the Law of 2 February 2021 containing various provisions relating to the Economy (publication of provisions related to Book IV CEL).

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

There is the chief economist (member of the board) 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?

Not in 2020.

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.

View all profiles

Get unlimited access to all Global Competition Review content