Belgium: New EC Merger Control Rules in Place

On January 20, the Council of Ministers adopted Council Regulation (EC) No. 139/2004 concerning the control of concentrations between undertakings (Regulation 139/2004).1 This new regulation, which replaces Regulation 4064/89, significantly increases the powers of the Commission to review and, if necessary, block transactions having a Community dimension,2 while at the same time bringing more flexibility to the review process. Regulation 139/2004 will enter into force on May 1, 2004.

Regulation 139/ 2004 introduces a new substantive test, according to which the Commission may block a transaction which

"would significantly impede effective competition, in the common market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position."

Unlike the rules contained in Regulation 4064/89, the new substantive test will specifically allow the Commission to take into account so-called unilateral effects, that is, price increases arising because the transaction eliminates some existing competitive constraint that had been holding back the price level in the market.3 Examples of transactions that may not pass muster under the unilateral effects doctrine are the acquisition of a maverick firm, a merger of two firms that are particularly close competitors, or a transaction allowing the merged entity to hinder expansion by competitors. Such transactions may have a negative impact on the competitive process in a market, without actually creating a single or collective dominant position. As a result of the modification of the substantive test, the Commission no longer needs to stretch the boundaries of the collective dominance test in order to block transactions resulting in price increases without creating a single dominant position.4

Regulation 139/2004 also modifies the system for referral of cases between the Commission and the national competition authorities. From May 1 onwards, companies may request the Commission to review transactions which do not have a Community dimension, but which are capable of being reviewed under the national merger control regimes of at least three Member States. Provided no competent Member State objects to the referral request, the transaction will be deemed to have a Community dimension, and the Commission will have exclusive jurisdiction to review such transaction at the exclusion of the Member States. This is a major step forward from the current system, in which sizeable transactions short of the Community dimension test are often reviewed by four or five different Member State competition authorities. It is expected that following the enlargement of the EU and the accession of the new Member States, most of which have relatively low pre-merger filing thresholds, it will be easy to meet the three country test in many multi-jurisdictional transactions, which will significantly lower the burden for companies involved in this type of transactions.

A higher degree of flexibility will be introduced into the review process. While retaining the relatively short review periods introduced by Regulation 4064/89,5 the new regulation offers the notifying parties the possibility to ask for an extension of the phase II review period with 20 working days. The phase II period can also be extended by 20 working days by the Commission with the agreement of the notifying parties. By introducing these modifications, the Commission hopes to be able to avoid timing problems which have often occurred in complicated phase II investigations as a result of the time limit provided for in Regulation 4064/89.6 Under Regulation 139/2004, it will also become possible to notify a transaction based upon a letter of intent: it suffices to show that the companies have a "good faith intention to conclude an agreement ;" a binding agreement is not longer required.

Finally, the fact-finding powers of the Commission in the context of merger proceedings have been substantially strengthened, and the potential fines -- for failure to respond to information requests (so-called Article 11 letters), and for supplying incorrect or misleading information in the notification or in response to an Article 11 letter -- have been increased to a maximum of 1% of the companies’ aggregate turnover. Regulation 139/2004 also empowers the Commission to conduct inspections of business premises and to interview natural or legal persons, subject to their consent.

Together with Regulation 139/2004, the Commission has published Guidelines on the assessment of horizontal mergers, which contain detailed information about the analytical approach that will be adopted by the Commission when reviewing mergers between actual or potential competitors. The guidelines in particular describe the different unilateral and coordinated effects that may result from a transaction, and also contain information on how the Commission will approach a potential entry analysis, countervailing buying power claims and the efficiency defense.

1: 2004, OJ, L 24/1.

2: The Community dimension test is defined by reference to worldwide, EU-wide and Member State revenues.

3: Like under Regulation 4064/89, the creation of a single of collective dominant position remains a basis for blocking a transaction under Regulation 139/2004.

4: This approach was condemned by the Court of First Instance in Airtours, [2002] ECR II-2585.

5: The one month review period of Phase I will be replaced by a 25 working days review period, and the four month review period of Phase II will become 90 working days instead.

6: A transaction that is not approved within the fixed time frames will be deemed to be approved by the Commission.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.