Introduction of filing fees in concentration notifications and transposition of the ECN+ Directive into Belgian law

On March 7, 2022, changes to both the Belgian Code of Economic Law (CEL) as well as the Belgian Criminal Code (BCC) were published in the Belgian Official Gazette (Belgisch Staatsblad, Moniteur belge).

The main changes include:

• Introducing a filing fee in notifications of concentrations

• Folding the rules and formalities relating to leniency programmes in the CEL and fine-tuning them

• Fine-tuning the provisions on the cooperation with other NCAs and the European Commission

• Expanding the circumstances in which periodic penalty payments and/or fines can be imposed

• Clarifying which turnover needs to be taken into account for purposes of calculating fines imposed on associations of undertakings and how such fines are to be collected

• Modifying the bid-rigging provision in the BCC to clarify that (criminal) immunity is available for bid-rigging infringements.

Save for the introduction of filing fees in concentration notifications, these changes were introduced to bring the Belgian competition law rules in line with “EU Directive 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market” or “ECN+ Directive” for short.

IN-DEPTH

The ECN+ Directive aims to ensure that NCAs “have the necessary guarantees of independence, resources, and enforcement and fining powers to be able to effectively [and consistently] apply Articles 101 and 102 TFEU”. To that end, the ECN+ Directive introduces minimum standards around the powers of an NCA to:

• Conduct dawn raids, which may, under certain circumstances, also extend beyond the investigated company’s premises

• Send requests for information both to the investigated company as well as its employees

• Interview employees as part of a competition law investigation

• Impose behavioural or structural remedies to bring an end to competition law infringement

• Impose interim measures during an ongoing investigation

• Make use of “commitments”

• Impose fines or request in non-criminal judicial proceedings to have fines imposed (note that the ECN+ Directive also foresees minimum standards for the calculation of the fines)

• Impose periodic penalty payments.

The ECN+ Directive also provides for minimum standards around leniency and immunity programmes, including the possibility of submitting markers and summary applications, and the possibility for natural persons to receive immunity from fines and sanctions. Finally, the ECN+ Directive also outlines rules on the cooperation between NCAs for competition law investigations.

Main Changes to the Belgian Legislation

The main changes to the CEL brought about by the publication of March 7, 2022 include:

• Introducing a filing fee in notifications of concentrations. From now on, notifications of concentrations before the BCA require the notifying party or notifying parties to pay a fee of EUR 52,350 or EUR 17,450 for full-form notifications or simplified notifications, respectively.

• Folding the rules and formalities relating to leniency programmes in the CEL and fine-tuning them. Previously, the formalities around leniency applications were outlined in the BCA’s 2020 leniency guidelines (Leniency Guidelines). These served as an add-on to Art. IV.54 of the CEL which only outlined the basic conditions and formalities of the Belgian leniency programme. Now the CEL outlines the full conditions and formalities of the leniency programme, such as the rules around immunity and leniency applications submitted by undertakings or association of undertakings, marker requests, summary applications and immunity applications submitted by natural persons.

  Whilst most of these provisions now covered in the CEL are taken from the existing Leniency Guidelines, it is worth noting that the rules on summary leniency applications differ somewhat to those previously applicable. Previously a summary leniency application could be submitted to the BCA if the applicant “has submitted or intends to submit an application to the European Commission”. Although this has now been expanded to not only cover leniency applications to the European Commission but also markers, an applicant can now only submit a summary leniency application to the BCA if it has already submitted a leniency application or marker to the European Commission – and no longer if it merely intends to do so. In addition, the new rules now also specify that the application must relate to “territory of more than three Member States”.

  A welcome change brought about by the publication of March 7, 2022 is that an applicant of a summary leniency application, immunity application, leniency application or marker does not have to submit these documents in Dutch or French – as was previously the case – but can opt to submit these in German or “any other EU language as agreed between the applicant and the Auditor”. Evidence is to be submitted in the original language. Insofar that this is not French, Dutch or German, the applicant may be requested to provide a translation in one of these languages.

• Fine-tuning the provisions on the cooperation with other NCAs and the European Commission, more specifically with regard to the assistance of the BCA in dawn raids requested by the European Commission or another NCA (or vice versa), the exchange between the BCA and other NCAs and/or the European Commission of leniency applications or other information, the use of such information received by NCAs and/or the European Commission in the BCA’s own investigation, etc.

• Expanding the circumstances in which periodic penalty payments and/or fines can be imposed. In addition to the existing powers of the BCA to impose a fine of maximum 1% of the undertaking’s (or association of undertaking’s) turnover for providing incorrect, misleading or incomplete information, for not providing information within a set deadline and/or for hindering an investigation, such a fine can now also be imposed for gun-jumping (i.e. implementing a notifiable transaction without submitting a notification to the BCA). The latter possibility was deleted following the new changes brought about by the Act of May 2, 2019 but is now reintroduced following case law of the European Court of Justice. In addition, a fine to the maximum of 1% of the average daily turnover realised in the previous financial year can now be imposed, per day of delay, to:

  • Provide complete and correct information in the context of a request for information or notification of a concentration

  • Provide an explanation in case the deadline of a request for information was not respected

  • Consent to investigatory measures

  • Appear before the BCA for a hearing

• Clarifying which turnover needs to be taken into account for purposes of calculating fines imposed on associations of undertakings and how such fines are to be collected.

Finally, the publication of March 7, 2022 modifies the rules in the BCC which outline the criminal penalties for bid-rigging. Previously, Art. 314 of the BCC stipulated that bid-rigging was to be sentenced with jail time of between 15 days to 6 months and with a monetary fine of EUR 100 to EUR 3,000. That provision is now extended to clarify that immunity is available – and thus that these penalties are not to be imposed – when the infringer has submitted an immunity application with the BCA in relation to the same facts and has handed over any relevant information in relation to the circumstances of the bid-rigging infringement and the parties involved to the public prosecutor.

The changes will enter into force on March 17, 2022.