On 6 September 2013, the bill amending the Competition Act entered into force.
The amended Competition Act constitutes Book IV of the new Code of Business and Economic Law (Wetboek van economisch recht/Code de droit économique).
Amongst other things, the Act reforms the Belgian Competition Authority. The objectives of the reform are twofold: on the one hand, to simplify the Competition Authority's structure and, on the other hand, to introduce faster and more efficient procedures. For instance, the Act provides for a settlement procedure for competition law violations and the possibility to appeal investigative measures. It also allows the Competition Authority to impose administrative fines on natural persons. Finally, the Competition Authority is granted new powers in relation to price intervention.
New structure of the Competition Authority
The Competition Authority merges into a single, independent administrative body, composed of an investigative arm and a decision-taking arm. The reformed Competition Authority is similar to the French Autorité de la Concurrence.
The new Competition Authority is led by a president, assisted by a management committee (Directiecomité/Comité de direction) which determines enforcement priorities and general policy. The management committee is composed of the president, the competition prosecutor-general, the chief economist and the head of legal affairs.
The College of Competition Prosecutors (Auditoraat/Auditorat) oversees the investigative phase: it decides whether to open an investigation, conducts the investigation and drafts a preliminary decision. This body is headed by the competition prosecutor-general.
The final decision is taken by the Competition College (Mededingingscollege/Collège de la Concurrence), formerly the Competition Council (Raad voor de Mededinging/Counseil de la Concurrence). The Competition College is an administrative body. Decisions of the Competition College can be appealed to the Brussels Court of Appeal. In accordance with the European Court of Justice's Vebic ruling (ECJ, 7 December 2010, C-439/08), the Competition College can defend its decisions before the Brussels Court of Appeal.
Procedures before the Competition Authority
Under the new procedure, undertakings concerned receive the statement of objections during the investigative phase and are able to present documents and information in their defence. The College of Competition Prosecutors no longer submits a report but rather a preliminary decision to the Competition College. This non-binding preliminary decision is then discussed before the Competition College. As is currently the case, the undertakings concerned are able to submit written observations and are given an opportunity to be heard.
The procedure for interim measures is also reformed. The new procedure should allow the Competition Authority to take a decision within two months from receipt of a request for interim measures.
The Competition Authority, following in the footsteps of the European Commission, can opt for an expedited settlement procedure, in which the undertakings concerned acknowledge their violation(s) of competition law and agree to pay a fine.
Appeal of investigative measures
Another important amendment 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 can object to the Brussels Court of Appeal the inclusion in the preliminary decision of evidence obtained during inspections by the College of Competition Prosecutors.
Administrative fines on natural persons
The Competition Authority can impose administrative fines on natural persons for competition law violations. More specifically, natural persons that took part in a cartel on behalf of an undertaking or an association of undertakings and that participated in so-called hard-core cartel practices, such as price fixing and market sharing, can be fined. On the other hand, fines cannot be imposed on natural persons merely for abuse of dominance. It is expected that fining natural persons will enhance the deterrent effect of the competition law rules. Before, the Competition Authority could only fine legal entities.
The Belgian Competition Authority has confirmed in a press release that the Notice of the Competition Council on immunity from fines and reduction of fines in cartel cases also applies to leniency applications of natural persons.
Price monitoring and intervention
The Competition Authority is granted new powers in relation to price monitoring. The Price Monitoring Authority (Prijzenobservatorium/Observatoire des prix), which forms part of the Ministry of Economic Affairs, reports 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.
Apart from a few novelties such as the introduction of fines for natural persons, the new Competition Act entails mostly a procedural and organisational reform of the Competition Authority. It is expected that the new Competition Authority which functions as a single body will have better focus and deliver more enforcement decisions. Hopefully the new Competition Authority can meet these high expectations. The Belgian enforcement will have to be stepped up significantly in order to catch up with the enforcement activity in neighbouring countries such as The Netherlands, France and Germany.
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.