On 6 February 2024, the federal Council of Ministers submitted to the Chamber of Representatives of the federal Parliament bill 55K3813 (the Bill) that will modify the procedures of the Belgian Competition Authority (BCA) while taking away parts of its merger review powers. The Bill will also implement Regulation (EU) 2022/1925 on contestable and fair markets in the digital sector (Digital Markets Act or DMA).

New Board Member, Amended Procedures and Support Role under Digital Markets Act

The Bill will create a fifth position within the board of directors (directiecomité / comité de direction) of the BCA: that of chief planning and budget (directeur planning en budget / directeur du planning et du budget). This new role involves responsibility for organisational strategy and for support services, including financial and accounting management, purchasing, human resources management, communications, logistics, IT, and document management. This change takes its cue from the structure of the French Competition Authority and was made necessary by the recent expansion of the BCA's budget. The new role is also designed to "increase cohesion" among the BCA's various sections. However, the future chief planning and budget will have no direct say in applying the competition rules.

The Bill also seeks to improve the efficiency of the antitrust procedures followed by the BCA:

  • The leniency rules currently distinguish between the immunity granted to individuals who contributed to a company's leniency application and the immunity granted to individuals who submitted an autonomous request for immunity not linked to a leniency application. The current rules do not provide for an obligation to cooperate imposed on the second category of immunity applicants. The Bill will change this.
  • The Bill will also resolve an apparent inconsistency in the existing rules and strengthen the parties' right to access the BCA's file by specifying that the preexisting evidence on which a leniency statement relies can be copied, even though the statement itself can only be consulted.
  • Under the current rules, prosecuted companies are given a month to respond in writing to the draft decision that the prosecution service submits to the decision-making body of the BCA (Mededingingscollege / Collège de la concurrence). That period starts on the day the company receives access to the investigation and procedural According to the Bill, this starting point is sometimes uncertain because of practical problems regarding access to specific documents. The Bill therefore proposes to have this period start on the day the company receives the draft decision (rather than the files). In a somewhat circular manner, the Bill justifies this change by pointing to the rule which provides that the investigation and procedural files are made available to the parties on the day of transmission of the proposed decision.

The Bill furthermore implements the Digital Markets Act. This leads to a restructuring of Book IV of the Code of Economic Law (Wetboek van Economisch Recht / Code de droit économique), which includes thecompetition rules, although the DMA rules are said to pursue a "complementary but different" objective from the competition rules.

While the European Commission (the Commission) has exclusive competence to apply the DMA, the BCA is granted a few competences to support the Commission's work. This includes the power to start investigations into possible breaches of gatekeepers' obligations (although the Commission is the only authority which can sanction such breaches) and the power to receive complaints filed under the DMA. The chief prosecutor of the BCA can also request the Commission to conduct a DMA market inquiry.

No Competence to Review Hospital Mergers below EUR 900 Million

The Bill curtails the powers of the BCA in the field of merger control. Following the adoption of the Bill, the BCA will no longer have the power to review mergers between "authorised hospitals" within the meaning of the Coordinated Law of 10 July 2008 on hospitals and other care centres (Gecoördineerde Wet van 10 juli 2008 op de ziekenhuizen en andere verzorgingsinrichtingen / Loi coordonnée du 10 juillet 2008 sur les hôpitaux et autres établissements de soins), unless the parties achieve high turnover thresholds: at least EUR 250 million per party and at least EUR 900 million collectively.

The Bill extensively justifies this exclusion based on several considerations:

  • The Bill explains that "certain concentrations of hospitals should be encouraged as a matter of health policy, as they will make it possible to provide more efficient, higher quality care by optimising the resources deployed". The Bill also refers to hospitals' "critical financial situation" and to the necessity to guarantee "high-quality, accessible care that is affordable in the long term".
  • The Bill also emphasises that the efficiency gains generated by mergers are particularly important in the hospital sector, as higher volumes of services have proved to result in higher quality care because of increased expertise.
  • The Bill points to the "important administrative burden" of merger control filings.
  • The Bill adds that the hospital sector "is not comparable to commercial sectors", as competition is "not a driver for price dynamics or quality of care". Since hospitals are almost entirely funded with public money, there is "no real competitive market at this level".
  • Even if mergers were to have undesirable effects, other regulatory instruments would suit better to resolve these issues, as hospitals are already heavily regulated.

This is without prejudice to the possible application of the EU merger control rules.

The Bill should put an end to years of uncertainty regarding the application of the merger control rules to hospital mergers. As recently as October 2023, the BCA published an analytical framework for the examination of hospital mergers and reminded stakeholders that "insofar as [mergers and acquisitions in the hospital sector] involve a change of control over the establishments in question and meet the statutory notification thresholds [of EUR 40 million of turnover for at least two parties and EUR 100 million collectively], they are subject to prior authorisation by the Belgian Competition Authority". This framework followed a note of 14 July 2023, in which the BCA had also confirmed its power to review mergers between hospitals under the Belgian merger control regime (provided such transactions do not create local hospital networks). The note of July 2023 had in turn been issued in response to a Law of 29 March 2021 which had excluded the constitution of local hospital networks from the scope of the merger control rules. The 2021 Law itself had been adopted following the BCA announcement on 22 July 2020 that the creation of local hospital networks may fall under the scope of the Belgian merger control rules.

(Wetsontwerp tot uitvoering van Verordening (EU) 2022/1925 van het Europees Parlement en de Raad van 14 september 2022 over betwistbare en eerlijke markten in de digitale sector, en tot wijziging van Richtlijnen (EU) 2019/1937 en (EU) 2020/1828 en tot wijziging van diverse bepalingen houdende de organisatie en de bevoegdheden van de Belgische Mededingingsautoriteit / Projet de loi exécutant le règlement (UE) 2022/1925 du Parlement européen et du Conseil du 14 septembre 2022 relatif aux marchés contestables et équitables dans le secteur numérique et modifiant les directives (UE) 2019/1937 et (UE) 2020/1828 et modifiant diverses dispositions relatives à l'organisation et aux pouvoirs de l'Autorité belge de la Concurrence – Bill available on the website of the Chamber of Representatives of the federal Parliament)

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