A profound change to the institutional and procedural landscape
for competition law in Belgium has taken place with the enactment
of new competition law provisions in the Belgian Code of Economic
Law (Chapter IV, Protection of Competition and Chapter V,
Competition and Price Evolution). These new provisions are designed
to provide for more effective enforcement, which at the same time
creates new risks for potential defendants.
Creation of revamped competition authority
More efficient structural basis. To increase the efficiency of the
Belgian Competition Authority (Belgische Mededingingsautoriteit
/ Autorité belge de la concurrence) (the
"Authority"), it will now operate as an administrative
authority. Its previous stature as an administrative court
resulted in significant delays.
New functions of President and General Auditor. The new
President and General Auditor hold the key roles in the oversight
and initiatives of the Authority. The President will be
responsible for representing the Authority and for its effective
functioning and will be directly or indirectly implicated in all
decisions adopted by the Authority. The Auditor General will have
overall responsibility for investigating and prioritizing
cases.
Creation of a price "observatory" and new powers of
intervention in pricing/margins. A new price
"observatory" (prijzenobservatorium / observatoire
des prix) will be responsible for monitoring price evolutions
in the event of perceived competitive problems in relation to
prices or margins. The Authority has the power to adopt provisional
means in view of remedying such perceived pricing or margin
problems in the event of urgent need for businesses or consumers.
These provisional measures by the Authority are to be followed by
structural measures proposed by the Minister of Economic
Affairs.
Major procedural modifications
Complete overhaul of procedures for summary
proceedings. While the conditions for summary proceedings
before the Authority remain unchanged, the procedure has been
completely altered. Following an applicant's initiation
of proceedings, the case may now be heard within very short
timeframes and without the involvement of the Authority's
auditors (the office for investigating cases). This procedure
may become a substitute for summary proceedings
(kortgeding/référé) before the
Belgian Commercial Court since in practice the new procedure means
that in order to maximize chances of success, an application must
already provide the necessary evidence in support of a claim.
Introduction of settlement procedure for all restrictive
practices. The new possibility for settlements is available for all
cases of restrictive practices and is not limited to
cartels. Companies will be eligible for a reduction of 10% of
their fine if they accept a settlement, but in return, they must
recognize their liability. Settlement decisions are final and
not subject to appeal.
Introduction of individual liability
Possible administrative sanctions on individuals. The new
Competition law also introduces the possibility of imposing
administrative fines on individuals who have directly participated
in serious violations of competition law consisting of agreements
on prices, limitation of output, and bid rigging.
Capped sanctions. Individual fines may not exceed
€10.000.
Uncertainty of impact of new Competition law
provisions
The new Competition law provisions contain worrisome loopholes and
inconsistencies, notably in relation to issues of confidentiality,
access to the file, and the appeal of the Authority's decisions
before the Brussels Court of Appeal. These deficiencies are
likely to result in material inefficiencies in applying these new
provisions.
Publication of the 3 April 2013 enactment can be found here .
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.