The ECN+ Directive implemented in Belgium and introduction of merger filing fees
On 7 March 2022, the Act implementing the ECN+ Directive into Belgian law was published in the Belgian Official Gazette. The Act entered into force on 17 March 2022. Some of the key amendments include (i) the introduction of filing fees for the notification of a concentration, (ii) new fines and penalty payments (including clarifications on the leniency programme), (iii) new dawn raid powers and (iv) the introduction of a regulatory framework for mutual assistance and cooperation within the European Competition Network.
Introduction of filing fees for the notification of a concentration
Undertakings notifying a concentration under the normal procedure (phase one or two) must pay a filing fee of EUR 52,350. This amount is reduced to EUR 17,450 when the simplified procedure applies. As from 2023, these amounts will be annually adapted on the basis of the consumer index.
In parallel, the Market Court (division of the Brussels Court of appeal) now has jurisdiction to review the legality of a decision to refuse the use of the simplified merger procedure. If the appeal is upheld, the Market Court will order the partial reimbursement of the filing fee.
New fines and penalty payments
The new Act reintroduces the possibility for the Belgian Competition Authority (BCA) to impose a fine of up to 1% of worldwide annual turnover on a company that has omitted to notify a reportable concentration or refuses to participate in a hearing.
In addition to periodic penalty payments, the BCA may now also impose fines of up to 1% of the worldwide annual turnover of a company that infringes an interim measure decision.
Furthermore, the BCA can impose periodic penalty payments of up to 1% of average daily turnover for failure to provide complete and correct data in the framework of a merger notification or other requests for information.
Associations of undertakings and the financial liability of the members
The new Act rewrites the conditions to trigger the financial liability of the members of an association of undertakings. The financial liability of each member as regards the payment of the fine may not exceed a maximum of 10 % of its turnover in the financial year preceding the decision and may not exceed a maximum of 1 % of its turnover in case of an obstruction.
The law provides for a financial liability of the members of the association as follows:
- When the BCA uses the turnover of the members as a basis to calculate the fine and the association is insolvent, the BCA can order the association to ask for the necessary funds from its members;
- If these funds are not provided in time to the association, the BCA can directly ask for the payment of the fine to the undertakings whose representatives were members of the decision-making bodies of the association;
- Ultimately, if necessary to ensure the full payment of the fine, the BCA may also ask any members of the association active on the market concerned to pay the unpaid amount of the fine,
- However, the BCA may not require the payment of the fine to undertakings that have demonstrated that they have not applied the infringement decision of the association or were not aware of this decision or actively disassociated themselves from it before the launching of the BCA proceeding.
Logically, where a fine is imposed not only on the association but also on its members, the turnover of the members who are fined should not be taken into account for the calculation of the association’s fine.
Leniency programme
The current leniency rules and guidelines are completed and clarified for example regarding:
- the conditions to be fulfilled by an undertaking to receive full or partial immunity from fines;
- the procedure for obtaining a marker;
- the submission of a summary leniency application: Undertakings that have already applied for leniency to the European Commission have the possibility to submit a summary application before the BCA in relation to the same alleged secret cartel, provided that the application covers more than three EU Member States.
Belgian criminal code
A bid rigging infringement constitutes both an administrative infringement (within the competence of the BCA) and a criminal infringement within the competence of criminal court. The new Act amends Article 314 of the Belgian criminal code in order to provide the possibility for natural persons involved in a bid-rigging offence to also obtain a criminal law immunity. Those individuals are exempted from criminal prosecutions if they provide the public prosecutor with all the information concerning the infringement and if they submit a leniency application to the BCA.
Dawn raid powers
The new Act now specifies that all types of evidence can be requested during a dawn raid (as long as this is within the scope of the investigation). This includes not only “classic” documents and oral declarations, but also electronic messages and other records (e.g. WhatsApp conversations). The new Act also lays down a procedure and timing to indicate confidential elements in the documents seized and provides for a possibility of ‘ring’ agreements regarding confidentiality.
Also new is the possibility for the BCA to lodge an appeal in the event a judge refuses to authorise a dawn raid.
Mutual assistance within the European Competition Network
The new Acts sets up the regulatory framework for mutual assistance and cooperation between the BCA and other National Competition Authorities during the investigation phase (e.g. assistance during dawn raids, exchange of leniency statements or other information received, notification of procedural acts, etc.) and after the decision is adopted (e.g. assistance to execute the decisions).
This article was published in the Competition Newsletter of April 2022. Other articles in this newsletter:
