Amendments to Belgian competition law enter into force
On March 17, 2022, the Belgian law transposing the ECN+ directive and also introducing several other amendments to Belgian competition law (i.e. book IV of the code of economic law) and the Belgian penal code entered into force .
Key points to remember
- The ECN+ Directive aims to empower national competition authorities in the EU to enforce competition law by providing them with the necessary resources and independence to enforce the law in order to ensure the proper functioning of the internal market.
- The ECN+ directive has now been transposed into Belgian competition law, along with several other amendments to the law, as of March 17, 2022.
- Merger filing fees, fines for failure to notify mergers and other procedural changes regarding the admission of evidence, leniency and immunity will come into effect and serve to strengthen the powers of the Belgian Competition Authority ( “ABC”) and to improve cooperation within the European Network Competition Authority.
On March 17, 2022, the Belgian law transposing the ECN+ directive and also introducing several other changes in Belgian competition law and the Belgian criminal code entered into force.
The main note changes include:
- merger filing fee – applicants will now have to pay a filing fee of 17,450 euros for a simplified merger procedure and 52,350 euros for an ordinary merger procedure. These amounts will be adjusted annually according to the consumer price index and should contribute to financing the increase in the BCA’s budget and resources;
- a fine of up to 1% of annual worldwide turnover for failure to notify a merger – Belgian competition law already provides for a fine of up to 10% of companies’ worldwide annual turnover to a notifiable transaction for violation of “standstill obligations” while a transaction is under review (i.e., misuse of arms behavior). Belgian competition law will now introduce an additional fine for failure to notify a concentration to notify;
- clarification of the leniency rules available to parties to a “secret cartel“– the rules on leniency applications contained in the ABC Leniency Guidelines are now included in Belgian competition law with some clarifications regarding the languages in which a leniency statement can be made and new conditions for clemency;
- extend immunity from criminal liability for bid-rigging immunity applicants – the amendments give effect to changes made to the Belgian Criminal Code to allow a company that successfully seeks immunity from the BCA for bid-rigging behavior to also benefit from immunity from criminal liability (the behavior bid-rigging is the only form of anti-competitive behavior giving rise to both civil and criminal liability);
- case law relating to the use and reliability of evidence obtained by unlawful means to apply to competition law investigations – case law on the admissibility of unlawful evidence now applies to competition law investigations, making it more difficult for parties to challenge the admissibility of evidence that could be used against them, even if they were obtained by illegal means; and
- voluntary disclosure of confidential documents – Belgian competition law now provides for a voluntary disclosure procedure for persons under investigation allowing them to undertake to voluntarily disclose confidential documents to the ABC. This formalizes a common practice in Belgian antitrust investigations.
The Belgian government took advantage of the transposition of the ECN+ directive to update the Belgian law on competition. The new amendments are welcomed by the BCA as they provide a more robust regime to enforce its competition law enforcement mandate.