A bill amending the Competition Act has been passed and published in the Belgian State Gazette. The bill's date of entry into force will be determined by royal decree. The amended Competition Act is expected to enter into force in September of this year.
The amended Competition Act constitutes Book IV of the new Code of Business and Economic Law (Wetboek van economisch recht/Code de droit économique).
The main changes to the Competition Act are the following:
New structure for the Competition Authority
The Competition Authority will be transformed into a single, independent administrative body, composed of an investigative arm and a decision-making arm. The College of Competition Prosecutors (Auditoraat/Auditorat) will oversee the investigative phase, while final decisions will be taken by the Competition Board (Mededingingscollege/Collège de la Concurrence).
Procedures before the Competition Authority
- Infringement procedure
The current procedure has been modified in order to resolve certain bottlenecks and improve efficiency. Under the new procedure, undertakings will receive the statement of objections during the investigative phase and will be able to present documents and information in their defence. The College of Competition Prosecutors will submit a preliminary decision, rather than a report, to the Competition Board.
- Procedure for interim measures
The procedure for interim measures has also been amended. The new procedure provides for strict deadlines to exchange written observations and should allow the Competition Authority to take a decision within two months from receipt of a request for interim measures.
- Settlement procedure
The Competition Authority, following in the footsteps of the European Commission, will be able to opt for an expedited settlement procedure, in which the undertakings concerned acknowledge their violation(s) of competition law and agree to pay a fine. Settlement decisions cannot be appealed.
Appeal of investigative measures
Another important modification is the possibility for undertakings to contest investigative measures by the College of Competition Prosecutors. In a separate appeal following issuance of the statement of objections, undertakings under investigation will be able to file an objection with the Brussels Court of Appeal to the inclusion in the preliminary decision of evidence obtained during inspections by the College of Competition Prosecutors.
The review period for transactions notified under the simplified merger control procedure has been reduced from 20 to 15 working days. In other respects, the current merger control thresholds and procedure are not significantly modified.
Administrative fines on natural persons
The Competition Authority will be able to impose administrative fines on natural persons who take part, on behalf of an undertaking or an association of undertakings, in so-called hard-core cartel infringements, such as price fixing, market sharing and limitations on production or sales. The fines range from €100 to €10,000. Fines can be avoided by applying for leniency.
Price monitoring and intervention
The Competition Authority is also granted new powers in relation to price monitoring, in Book V of the Code of Business and Economic Law. The Price Monitoring Authority(Prijzenobservatorium/Observatoire des prix), which forms part of the Ministry of Economic Affairs, will report to the Competition Authority on structural market problems, dysfunctions in pricing levels or margins, and abnormal price fluctuations. Subsequently, the Competition Authority can, after having heard the parties, order interim measures, e.g. impose maximum prices, for a period of up to six months. The parties can appeal interim measures to the competent appellate court.
Click here to view the Newsflash that appeared earlier on this topic.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.