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Belgium Streamlines Competition Enforcement Regime

Perhaps best known worldwide for its Trappist breweries, Belgium is increasingly hospitable to business regulation. It is among the many countries that have recently introduced new laws and created new agencies to regulate business practices that have undermined economic competition. In April 2013, Belgium revised its Code of Economic Law (“Code”) to implement a simplified competition enforcement regime. (The revised Code section is available here.)

Newly revamped is the Belgian Competition Authority (“BCA”), the agency charged with investigating and enforcing Belgian competition law. The BCA now comprises four sub‑units: (1) the BCA President; (2) the Competition College, which holds decision-making powers for the BCA; (3) the Competition College Auditors, or the Auditorat, which possesses investigative authority and is headed by an Auditor-General; (4) and the Competition Board, or Directional Committee, which consists of the President, the Auditor-General, the Chief Legal Officer and the Chief Economist and which is in charge of general policy for the BCA. This is a far simpler structure than under previous law, which scattered enforcement authority across several institutions.

The revised Code also streamlines the procedure for the investigation, by the BCA, of potential anti‑competitive practices. Investigations occur in two phases that together should yield a final decision in the majority of cases in less than two years. First, the Auditorat sends the subject of the investigation a letter describing the conduct that is the subject of the transaction, after which the recipient, with access to the Auditorat’s non‑confidential files, may submit a reply letter in its defense. The Auditorat will then prepare a draft decision, to which the subject may object. Second, the Competition College receives the Auditorat’s draft decision and investigative file. The investigated entity may access the updated file and prepare its defense, including submission of additional documents to support its objections. The Competition College will then hold a hearing and issue a decision. Most decisions may be appealed to the Court of Appeal of Brussels. The procedure for review of proposed mergers is essentially the same.

In addition, the revised Code promotes early settlement of charges underlying antitrust investigations by introducing a procedure that offers a reduction in fines to companies willing to settle. If the subject of the investigation admits to the offense, and the Auditorat accepts that settlement, then any ensuing fine will be reduced by 10 percent. Settlement decisions adopted by the Auditorat are final, and cannot be appealed.

The BCA is now empowered to respond to situations that present the potential for serious, immediate, and irreparable harm to competitors, consumers, or general economic well-being. Specifically, upon approval of the Competition College, after a noticed hearing, the BCA may also impose temporary (with a maximum duration of six months) interim measures while investigations are pending. Such interim measures may include setting maximum prices in a particular industry or mandatory provision of information to consumers.

Of note, Belgium’s revised antitrust regime does not include any criminal antitrust penalties. In contrast to prior law, however, individuals acting on behalf of a company may now be subject to administrative penalties for personal involvement in antitrust violations, such as causing the company to enter agreements with competitors regarding the prices of goods or services, the reduction in production or sale of goods or services, or the allocation of markets.

Companies doing business in Belgium should keep informed about the nation’s modernized – and perhaps revitalized – antitrust enforcement system, including the early settlement procedure. Should a company be the subject of an investigation, that investigation will most likely move far more quickly under the current competition regime. Practitioners should remain mindful that this new system is meant to increase efficiency and encourage swift resolution of conflicts. Accordingly, companies and individuals under scrutiny in Belgium had better not waffle: time constraints may present a challenge to mounting a nuanced defense or conducting a parallel and thorough internal investigation.