Belgium implements ECN+ Directive and amends the competition rules for the third time in as many years

With the third important amendment in as many years, the Belgian legislator implements the EU’s ECN+ Directive (2019/1), roughly 13 months after the transposition deadline of 4 February 2021.

The Act, amongst other things, include rules on the BCA’s investigatory powers, confidential treatment of documents, including the introduction of a new “clean team” procedure and rules on the cooperation with, and assistance to, the national competition authorities of other Member States. In this article, we however wanted to highlight the following three points.

1. Introduction of notification fees for mergers

Under the new rules, a party which is required to notify a transaction to the Belgian Competition Authority (BCA) will have to pay a retribution of EUR 52,350 for a normal and EUR 17,450 for a simplified notification. The amounts are fixed amounts and not linked to the value of the transaction or the size of the undertakings involved.

The amounts are the same as the fees required in the Netherlands. In Germany, notification fees can amount to up to EUR 50,000 although for simple transactions they usually range between EUR 3,000 and EUR 15,000. In other neighbouring country France, notification is free. Luxembourg does not have a merger notification regime.

2. Amendments to the Leniency Programme

As most competition authorities, the BCA already had a leniency programme, which allowed companies to denounce secret cartels in exchange for immunity from (first whistle-blower) or a reduction of administrative fines (subsequent whistle-blowers). The preferential treatment of the first whistle-blower created what is often called a “leniency race”.

The BCA’s programme was until now contained in its Leniency Guidelines of May 2020, the new Act moves the main aspects into Book IV of the Code on Economic Law.

While the new rules are for the most part a copy of the BCA guidelines, there are certain important differences:

• The rules on languages are significantly relaxed. Under the new regime, companies will be allowed to make leniency statements in Dutch, French, German or any other EU language agreed between the BCA and the applicant.
  This means that parties will no longer be bound by the language of the Belgian Region in which they are registered and will also be able to make statements in English (if the BCA agrees). This is a welcomed improvement, as it can significantly reduce the administrative burden of applying for leniency for multinational groups with offices in Belgium.
• The law introduces two additional criteria to obtain leniency:
  • In line with the ECN+ requirements, leniency applicants will be required formally to declare their participation to the secret cartel.
  • In order to obtain leniency, both immunity and leniency applicants will have to “contribute to the identification of participants” to the secret cartel.

3. Immunity protection extended to criminal sanctions

Under Belgian law, most competition law infringements are purely a matter of administrative law. The notable exception is bid rigging, which is currently punishable by imprisonment of 15 days to 6 months and by a fine of EUR 800 to EUR 24,000. However, as this has until now never been an enforcement priority for the Prosecutor’s Office, the provision has rarely been applied.

The new Act amends the Criminal Code, exempting immunity applicants from any criminal sanctions. Leniency applicants can still face criminal prosecution, although it is expected that the Prosecutor’s Office will pursue this only in severe cases.

The text has been adopted by Parliament on 24 February 2022 and can be found here in Dutch and French. The Act has been published in the Belgian Official Gazette on 7 March 2022. It enters into force on 17 March 2022, 10 days after publication.

For more information, please contact Hein Hobbelen and Baptist Vleeshouwers.

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