On 27 December 2012, the Belgian federal government introduced
two draft bills aimed at reforming Belgian competition law. These
bills are expected to be adopted in February 2013 but will not
enter into force before 1 April 2013 at the earliest.
While the draft legislation does not affect the substance of the
Belgian competition rules on anti-competitive agreements, abuse of
a dominant position and merger control, it introduces a number of
important procedural reforms.
Most notably, the bills introduce the possibility for the
Competition Authority to fine individuals who were involved in
"hardcore" infringements of competition law, such as
price-fixing cartels. In return, these individuals also become
eligible for immunity from fines as part of the leniency
The draft legislation also brings about a significant reform of
the Belgian Competition Authority ("BCA"), which will be
set up as a single, independent authority but will be divided in
four distinct divisions with separate tasks. The BCA will consist
of (i) a President; (ii) a Competition College; (iii) a Management
Committee; and (iv) a College of Prosecutors headed by a Chief
In order to ensure that the new Competition Authority remains
fully independent, the draft legislation puts an end to the current
powers of the Council of Ministers to overrule a merger control
prohibition decision adopted by the Competition Authority (a power
which the Council of Ministers never made use of).
The draft legislation also improves the Competition
Authority's decision-making process, codifies the existing
leniency procedure, introduces a settlement procedure and provides
for more efficient interim measure procedures. In line with a
recent ruling of the Belgian Constitutional Court (see VBB on
Competition Law, Volume 2012, No. 12, available at
www.vbb.com), the draft legislation also provides that
antitrust fines are not tax deductible.
Finally, the draft legislation broadens the powers of the
existing Price Observatory, which will be in charge of the
detection of any "problems regarding prices or margins,
abnormal pricing developments or structural market problems".
Any finding of such supposed pricing anomalies will be transmitted
to the Competition Authority for further review. In addition, the
government will be given the power to take structural measures
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Interim measures adopted by the BCA are only temporary and do not prejudge the existence of any infringement of Belgian or European competition law.
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