The enforcement of competition law in Belgium has recently undergone reforms having notable consequences for companies. The reforms stem from the entry into force on 17 March 2022 of a Belgian act implementing EU Directive 2019/1 (the “ECN+ Directive”).
The purpose of the ECN+ Directive is to make national competition authorities more effective enforcers of EU competition rules (Articles 101 and 102 TFEU). It is in particular designed to ensure that these authorities have the guarantees of independence, sufficient resources, and the necessary enforcement and fining powers. The new rules also aim at a consistent enforcement of competition rules across the European Union, as well as a closer collaboration between competition authorities.
The act of 28 February 2022 (the “Act”), implementing the ECN+ Directive into the Belgian legal order, came into force on 17 March 2022.
- Merger filing fees
The Belgian legislator made use of the implementation of the ECN+ Directive to introduce the anticipated filing fees for undertakings notifying a concentration to the Belgian Competition Authority (the “BCA”). As from 17 March 2022, a filing fee of EUR 52,350 is charged for notifications under the regular procedure. A filing fee of EUR 17,450 applies to simplified notifications. These fees will be indexed on an annual basis as of 2023.
- Increased coercive powers for the BCA through additional fines
- The Act introduces the possibility for the BCA to impose a fine of up to 1% of its worldwide annual turnover to an undertaking failing to comply with its obligation to notify a concentration. This fine may be cumulated with the already existing fine (of up to 10% of worldwide annual turnover) for failure to comply with the standstill obligation (i.e., the prohibition to implement a notifiable concentration without prior approval of the BCA).
- From now on, the BCA can also impose fines of up to 10% of the turnover of an undertaking that does not respect interim measures. Previously, the BCA could only impose periodic penalty payments to enforce interim measures.
- In addition, a fine of up to 1% of the undertaking’s average daily turnover can be applied per day of delay in order to force the undertaking to:
- provide complete and correct information in the context of a request for information or notification of a concentration;
- provide an explanation in case the deadline of a request for information was not respected;
- comply with investigatory measures;
- appear before the BCA for a hearing.
- New rules on fines calculation and collection for associations of undertakings
The Act clarifies which turnover needs to be considered to calculate fines imposed on associations of undertakings. The concerned turnover is the sum of the turnover of each member of the association active in the relevant market. The financial liability of each undertaking is however limited to 10% of its turnover (or to 1% for abuses of a position of economic dependence). In order to ensure an efficient recovery of the payments, the Act further defines how fines imposed on associations of undertakings are to be collected.
- Intensified cooperation with other competition authorities
Following the intended enhancement of cooperation between national competition authorities, the Act provides for clearer rules in relation to the assistance of the BCA in investigations of the European Commission or other national competition authority (or vice versa). This includes, amongst others, close cooperation during dawn raids, exchange of leniency applications or other information.
Furthermore, the Belgian Federal Public Service of Finance is now able to collect fines and periodic penalty payments on behalf of national competition authorities within the European Union (while previously it could only do so on behalf of the BCA and the Market Court).
- Procedural changes to antitrust investigations, in particular leniency procedures
- The Act refines and further codifies the legal framework relating to the leniency policy. Main changes include the introduction of (i) updated rules for leniency applications by undertakings and associations of undertakings, (ii) the conditions to request a marker prior to a leniency application, (iii) the possibility to file summary leniency applications, (iv) clearer modalities to apply for immunity as natural persons, and (v) a formal protection for information submitted in support of leniency applications (among other things to prevent the use of that information at a later stage in an action for damages).
- Under Belgian law, collusive tendering is punishable not only with administrative sanctions but also with criminal sanctions. Whereas the BCA may grant immunity from administrative sanctions, competition authorities enjoy no such power with regard to criminal prosecution. Therefore, a new section has been added to the Criminal Code exempting companies applying for leniency with the BCA from criminal sanctions provided they have reported to the Public Prosecutor all information in their possession concerning the circumstances and perpetrators of the infringements.
- The Act also introduces the principle of free admission of evidence in competition law cases. It especially formally institutes the Antigoon rule, originally developed in criminal procedure, in competition law as well. This means that unlawfully obtained evidence can only be excluded: (i) if the rules violated by the taking of evidence are prescribed under penalty of nullity, (ii) if the irregularity itself has rendered the evidence unreliable, or (iii) if the admission of the evidence concerned would be contrary to the right to a fair trial. Thereby, Parliament essentially gave legislative approval to the Caudalie case where the BCA already, implicitly, adopted the Antigoon rule in its jurisprudence.
- From now on, parties will also have to proactively claim confidentiality of sensitive documents. When submitting information to the BCA, the parties must now justify the confidential nature of the information and provide a non-confidential version or summary. Failing this, the information will be considered as non-confidential. Previously, the parties were invited by the BCA to claim and justify confidentiality of the submitted information within a specific deadline.
