CN07 - Amendments to Belgian Competition law enter into force

On 17 March 2022, the Belgian Act transposing the ECN+ Directive and also introducing several other amendments to Belgian Competition law (ie, Book IV of the Code on Economic Law) and the Belgian Criminal Code entered into force. 

Key takeaways

• The ECN+ Directive aims to empower EU National Competition Authorities to enforce competition law by providing them with the necessary resources and independence to enforce the law 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, effective from 17 March 2022.
• Merger filing fees, fines for failure to notify mergers and other procedural changes with respect to the admission of evidence, leniency and immunity will take effect and will serve to strengthen the powers of the Belgian Competition Authority ("BCA") and improve cooperation within the European Competition Network.

On 17 March 2022, the Belgian Act transposing the ECN+ Directive and also introducing several other amendments into the Belgian Competition law and Belgian Criminal Code entered into force. 

Key amendments of the note include:

• merger filing fees – filing parties will now need to pay a filing fee of EUR 17,450 for a simplified merger procedure and EUR 52,350 for a regular merger procedure. These amounts will be adjusted annually in line with the consumer price index and are expected to help fund the BCA's increased budget and resources;
• a fine of up to 1% of the worldwide annual turnover for failure to notify a concentration – Belgian Competition law already includes a fine of up to 10% of the worldwide annual turnover of undertakings to a notifiable transaction for breach of "standstill obligations" while a transaction is under review (ie, gun-jumping conduct). The Belgian Competition law will now additionally introduce a fine for a failure to notify a notifiable concentration;
• clarification of rules on leniency available for parties to a "secret cartel"– the rules on leniency applications contained in the BCA's 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 leniency;
• extending immunity from criminal liability for bid-rigging immunity applicants – the amendments give effect to changes to the Belgian Criminal Code to permit an undertaking that successfully applies for immunity to the BCA in the case of bid-rigging conduct to also receive an immunity from criminal liability (bid-rigging conduct is the only form of anti-competitive conduct that attracts both civil and criminal liability);
• case law on the use of and reliance on evidence obtained through unlawful means to apply to competition law investigations – case law regarding the admissibility of unlawful evidence now applies to competition law investigations making it more difficult for parties to dispute the admissibility of evidence that may be used against them even if obtained through improper means; and
• voluntary disclosure of confidential documents – the Belgian Competition law now provides undertakings with the formal possibility to enter into a confidentiality ring agreement with other parties subject to the same investigation (meaning the parties agree on conditional access to confidential documents by a restricted group of persons), thereby lessening the burden on companies to identify and justify the confidentiality of certain information contained in the BCA file.

The Belgian Government has taken the transposition of the ECN+ Directive as an opportunity to update the Belgian Competition Act. The new amendments are welcomed  by the BCA, as they provide a more robust regime to enforce its competition law enforcement mandate.

With thanks to Max Ryckx of Ashurst for his contribution.