On 16 November 2018, the Belgian Council of Ministers adopted a draft Bill (the “Draft Bill”) bringing about a wholesale change of the competition law provisions of the Code of Economic Law (“CEL”) (see, Van Bael & Bellis on Belgian Business Law, Volume 2018, No. 11, p. 3, available at www.vbb.com). When the Belgian government became a caretaker government a few weeks later, the Draft Bill seemed moribund. However, members of parliament recently converted it into a private members’ bill which was introduced in the Federal Chamber of Representatives at the end of February 2019.
The Draft Bill will not bring about major substantive or procedural changes to the current competition rules and will also maintain the prevailing institutional architecture. Still, a new text will replace in full Book IV of the CEL entitled “Protection of Competition”. New definitions will also be added to Book I of the CEL. Finally, the Draft Bill will modify Book XV of the CEL which governs the enforcement of laws.
Despite its ostensibly modest objective, the Draft Bill thus constitutes another major change of the Belgian competition rules and the question arises whether the legislative zeal at its basis is really justified by the practical problems which the Draft Bill is said to address. Time will tell.
The following novel provisions are noteworthy:
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Increased cap on fines – The maximum amount of fines that the BCA can impose will be increased from 10% of the Belgian turnover of the firm concerned to 10% of its worldwide turnover. This is in line with a requirement imposed by the recently adopted “ECN+ Directive” at the EU level. The new ceiling for fines will only apply to competition law infringements committed after the entry into force of the law. Additionally, a specific transitory regime will be provided for.
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Competition infringements by individuals – Unless he/she should be regarded as an undertaking, an individual will only be found in breach of the competition rules if there is also a finding of infringement against the undertaking in which he/she is active. An exception applies if that undertaking no longer exists. Additionally, the competition rules applying to individuals only extend to cartel-like conduct and also expressly cover negotiations, including aborted discussions.
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Commitments in behavioural cases – The competition prosecutor (“auditeur”/ “auditeur”) will have the power to formally terminate proceedings in response to commitments offered by the party under investigation (this is currently the exclusive right of the Competition College).
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New rules governing request for interim measures – The Competition College will be expressly required to balance all interests at stake when assessing the merits of a request for interim measures. The new rules also address lacunae in the existing rules, such as a ban on the plaintiff to submit further arguments and exhibits except if expressly authorised to do so in order to respond to specific arguments in support of the defence.
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Dawn Raids – The investigating magistrate for Brussels (Dutch- or French-language Court of First Instance) will be exclusively competent to authorise on-site inspections on the entire Belgian territory.
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New rules governing confidentiality before the Brussels Court of Appeal (Market Court) – The Market Court will be given the express task to protect confidential information. It will have a number of instruments to achieve this goal, including the power to require the parties to produce non-confidential versions of exhibits and expert summaries of reports; and the ability to hold non-public hearings and create access to documents on a need-to-know basis.
- Detailed new language rules.
The Draft Bill was reviewed and adopted by the committee for economic affairs of the Chamber of Representatives on 26 March and, following further amendments, again on 4 April 2019. It is now scheduled for final adoption by the plenary session of the Chamber of Representatives on 24 April 2019, just before the Belgian Parliament is dissolved in view of the coming general election on 26 May 2019.
Peter L'Ecluse
Partner
plecluse@vbb.com
Martin Favart
Partner
mfavart@vbb.com
