11 March 2022 Gerwin Van Gerven  -  Sari Corrijn  -  Simon Graff  -  Florian Jonniaux Competition and Antitrust

Transposition of ECN+ Directive in the Belgian Code of Economic Law

Revised merger control and antitrust rules in Belgium: Too late, but not too little

On 7 March 2022, Belgium published the changes to its competition rules set out in the Belgian Code of Economic Law (“CEL”). These changes will enter into force on 17 March 2022. Most of the changes are a result of the ECN+ Directive, but there are others. We highlight the main practical changes to merger control and antitrust procedures.

Merger Control

Going forward, Belgium will have a filing fee, of EUR 17K for a simplified merger notification and EUR 52K for a non-simplified merger notification. The filing fee is somewhat higher than in the Netherlands which applies a filing fee of EUR 17K for simplified procedures and EUR 34K for non-simplified procedures.

Antitrust investigations
  • Requests for information (“RFI’s”) – The New Act clarifies that the Competition Prosecutor may request the production of emails and instant messages (e.g. WhatsApp). This institutionalises an already well established practice.                                                                                                                               Additionally, the CEL now clarifies the need to respect the principles of proportionality and protection against self-incrimination in the framework of RFIs – arguably again a mere clarification rather than a change.
  • Confidentiality of documents – The New Act formalises a “negotiated disclosure procedure”, where the Belgian Competition Authority (“BCA”) may allow the parties under investigation to voluntarily agree to a disclosure procedure of confidential documents.
  • Leniency – The CEL now provides more detail on the leniency application procedure. Immunity from fines in leniency procedures is now explicitly limited to “secret cartels” – settling a debate in this respect about the scope of leniency under the Belgian law. A cartel is deemed secret when cartel elements, which make the full scope of the cartel conduct more difficult to detect, are not known to the public, customers or suppliers.

Furthermore, the practice of markers in leniency procedures is now codified and a time limit for providing relevant information to the BCA’s can be set.

  • Fines – The BCA will now be able to impose regular fines if interim measures are not respected. Previously, only a periodic penalty payment could be imposed.
    • For associations of undertakings, the principle of solidarity applies, meaning every member of the association can be requested to pay the fine in full.
    • The New Act introduces the possibility of imposing fines for a failure to decline investigative interviews, which will be based on the average daily turnover of the undertaking.
  • ‘Antigone/Antigoon’ doctrine –The New Act now makes this doctrine on the taking of evidence and the conditions for setting aside illegally obtained evidence explicitly applicable to antitrust investigations, making the exclusion of evidence obtained in an irregular way more difficult. This means that evidence can only be struck out if: (a) compliance with the relevant formalities is prescribed (with the sanction of nullity); (b) or the irregularity committed has affected the reliability of the evidence; (c) or the use of the evidence is contrary to the right to a fair trial. The application of this doctrine (well established in criminal cases) to competition investigations had already been suggested by the Brussels Court of Appeal.
  • Improved cooperation within ECN Network – Multiple amendments have been made to ensure effective cooperation between national competition authorities (“NCAs”) across Europe.
    • One significant amendment is that, in addition to the transmission of all factual and legal information, all leniency applications can now also be submitted to other NCAs if (a) the applicant permits it or (b) the applicant already applied for leniency with the other NCA for the same offence.
    • Additionally, when another NCA makes a request for the enforcement of decisions imposing fines or periodic penalty payments, the New Act foresees the possibility for the BCA to deny this request, which must be motivated for reasons of national public order.
    • Lastly, the New Act clarifies against which (ECN+ cooperation) measures parties can launch an appeal. Separate appeal procedures may be started against (a) measures following requests for the notification of preliminary objections and other documents, both on behalf of other NCAs and the BCA; (b) and measures following the request for the enforcement of decisions imposing fines or periodic penalty payments, both on behalf of other NCAs and the BCA.

Despite being late in the transposition of the ECN+ Directive, the Belgian legislator finally adapted Belgian law and practices to the requisite ECN+ standards, but also took the opportunity to consolidate/clarify existing Belgian competition rules with recent trends in the case law.