Belgian Competition Act Amended to Introduce Merger Filing Fees, Fines for Failure to Notify and Procedural Changes

On March 7, 2022, a law amending the Belgian Competition Act and transposing the ECN+ Directive (EU Directive 2019/1) was published. Notable changes include the introduction of merger filing fees (EUR 52,350 for the normal procedure and EUR 17,450 for simplified notifications), fines for violating the notification obligation, and new provisions concerning cooperation with other national competition authorities, judicial remedies, dawn raids and leniency. The amendments enter into force on March 17, 2022.

The ECN+ Directive aims at empowering national competition authorities to become more effective enforcers (for example, through the provision of the necessary financial, human, technical and technological resources, and additional guarantees of independence). The transposition of the Directive into Belgian law was overdue, since the transposition deadline was February 4, 2021.

The amendments to the Belgian Competition Act introduce several new features. The most eye-catching of these is undoubtedly the introduction of filing fees for companies notifying a concentration to the Belgian Competition Authority (BCA). These fees are set at EUR 17,450 for simplified notifications (which represent the majority of cases) and EUR 52,350 for notifications under the normal procedure. The fees apply to notifications filed as from March 17, 2022. As of 2023, they will be adjusted annually on the basis of the consumer price index. The new fees are expected to increase the resources available to the BCA, in line with the requirement of the ECN+ Directive that Member States provide national competition authorities with adequate resources. This brings the number of EU Member States that apply merger filing fees to 22. Finland, France, Italy and Sweden remain the only Member States that do not require such fees, while Luxembourg does not have a system of merger control. As for the UK, although it does not have a system of mandatory merger control, it levies fees for the transactions that it does examine.

The amendments also introduce the possibility for the BCA to impose fines of up to 1% of worldwide annual turnover on companies that fail to notify a reportable concentration before its implementation. This fine will be in addition to the already existing fines (of up to 10% of worldwide annual turnover) for failure to comply with the standstill obligation. This change has been introduced in response to recent case law from the Court of Justice of the European Union, in which it has been held that it is not contrary to the ne bis in idem (double jeopardy) principle to impose cumulative penalties for a violation of both the notification obligation and the standstill obligation.

In addition, the BCA will be able to impose fines for not respecting interim measures. Previously, it could only impose periodic penalty payments.

As regards cartel infringements, the Belgian Criminal Code has been amended to allow companies who have successfully applied to the BCA for leniency also to receive immunity from criminal liability in case of bid-rigging.

In the context of enhanced cooperation between national competition authorities, the Belgian Federal Public Service for Finance will now be able not only to collect fines and periodic penalty payments imposed by the BCA (and the Market Court on appeal), but also to recover fines and periodic penalty payments on behalf of the national competition authorities of other EU Member States.

Moreover, parties to a concentration will now be able to challenge certain decisions taken by the Prosecutor to the Market Court where this was not possible before, such as a refusal to allow the use of the simplified procedure.

The law also makes the Antigoon jurisprudence of the Belgian Supreme Court (Hof van Cassatie – Cour de Cassation) regarding the admissibility of unlawful evidence in criminal or quasi-criminal investigations explicitly applicable to competition law investigations, making the exclusion of such evidence more difficult. The law additionally makes it possible for covert recordings made by natural or legal persons who are not a government agency to be used as evidence in a cartel or abuse investigation, provided that these recordings are not the only source of evidence.

Finally, there are a few notable changes regarding the conduct of inspections (dawn raids). For instance, the national competition authority will now be able to appeal to the Brussels Court of Appeal if an investigating judge refuses to grant authorization for an inspection. Furthermore, the BCA will be authorized to exercise its investigative powers under national law on behalf of other national competition authorities, in order to establish whether companies or business associations have failed to comply with the investigative measures and decisions of the requesting national competition authority.