The Belgian Competition Authority issues its 2020 Annual report
On 18 May 2021, the Belgian Competition Authority (“BCA”) published its 2020 Annual report, illustrating key developments and cases embedded in its practice and elaborated on its future enforcement priorities in the exercise of its jurisdiction on the Belgian territory.
Although limiting only marginally the BCA’s presence on European and international fora, the COVID-19 pandemic has had an impact on merger activity as the overall number of notified transactions was appreciably smaller compared to 2019, representing a decline of almost 25%. While in 2019, two on-premises searches were conducted, this fell to zero in 2020. With nine antitrust decisions and the opening of seven investigations, the BCA focused on tracking down cartels rather than pursuing (possible) abuse of dominance infringements. A steep increase in decisions containing interim measures can be noted although these were not systematically positive.
Regarding its regulatory activities, the BCA has enlarged the conditions for a simplified procedure for merger control to focus its attention on the larger transactions and it modified its leniency guidelines and fining policy to align these with the revisions of book IV of the Code of Economic Law.
The leniency guidelines now explicitly provide that if the undertaking or association of undertakings has ceased to exist and has no legal successor, the examination may be carried out and the decision taken regarding the natural person alone. Further to minor textual clarifications, they also exclude the use of the English language in leniency proceedings.
Previously, the fines imposed by the BCA were capped to 10% of the annual Belgian turnover of companies condemned for an infringement of competition law. The maximum fine cap has been increased to the 10% threshold of the worldwide turnover in line with the Guidelines of the European Commission.
The legislation on abuses of economic dependency that came into force one year ago has yielded significant uncertainty. So far, mainly tribunals have been seized on this matter and rendered judgements with mixed results. In the years to come, the BCA and judges will jointly have to outline the concrete application of the legal framework provided for in articles I.6, 4° and IV.2/1 of the Code of Economic Law. Indeed, for abuses of economic dependency where a company is the indispensable economic partner of another, fines of up to 2% of the company’s consolidated annual Belgian turnover may be applied.
In terms of future enforcement priorities, infused by the digital transformation and the green transition of the economy and the recently adopted abuse of economic dependency provision, the BCA will focus in particular on the digital, pharmaceuticals, telecoms, energy, logistics and public tender sectors which continue to represent a large part of today’s economy. Indeed, one may consider these sectors as the usual suspects as they correspond to the sectors previously prioritized with the exception of the energy sector. Increased attention towards ensuring compliance with competition law by actors that are (planning to become) active therein is and will remain critical.
