Belgian Competition Authority Publishes Its Notice on Enforcement Priorities for 2022


On May 16, 2022, the Belgian Competition Authority (BCA) published its long-awaited notice on enforcement priorities for 2022 (Notice).

The BCA explains that, with a view to making the best use of its resources, it will focus its interventions on matters where the expected positive effect of its actions is greatest. One of the factors that will determine its priority focus is the strategic importance of the investigation which will in turn depend on (1) the “impact” of the direct damage caused by the infringement, (2) the strategic importance of the investigation (e.g. where the matter concerns a priority sector, may create a precedent or may provide an opportunity for the BCA to clarify the law), (3) the likelihood that the investigation will yield a “useful result”, and (4) the resources required.

Unsurprisingly, the digital economy, services industry, energy sector, pharma sector and telecom sector remain high on the BCA’s agenda. The agro-food and sports sectors have now been added to that list in line with the growing competition law concerns relating to those sectors.

In addition, the BCA has announced that it will, in the future, set up a special “merger control team”, that it will beef up its enforcement tools (surveys, e-discovery, anonymous whistleblower tools), and that there will be a further strengthening of expertise regarding the implementation of the Law on economic dependency.

Lastly, the Notice refers to the BCA’s desire to tackle new challenges, such as competition in labour markets which follows a trend in other EU countries as well as the US (see, e.g., here and here for a summary of the case brought against DaVita and its former CEO, Kenty Thiry that was successfully defended by McDermott) and the application of the competition policy in the context of a green and circular economy in Belgium.

IN DEPTH


Introduction

The Notice starts off by referring to the impact of the COVID-19 pandemic, rising energy prices and the Russian invasion of Ukraine. The BCA remarks that the latter has led to an even further increase of energy prices given the fact that Russia is an important energy supplier, and that the invasion has led to a brake being put on the supply of raw materials and intermediate goods as well as on the export activities of Belgian companies to both countries. The Notice highlights that these events may influence certain sectors significantly, such as the food, construction and industrial sectors that depend heavily on the international supply of raw materials (including certain metals and minerals). The BCA explains that a “healthy and fair market” provides for the best protection of general economic prosperity both in the sectors experiencing serious difficulties as well as in the sectors in which new opportunities have arisen as a result of this new economic reality.

Strategic Priorities for 2022

Before setting out its “strategic priorities”, the BCA refers to, and summarises, the recent changes made to the Belgian Code of Economic Law (CEL) and the Belgian Criminal Code in March 2022 (for further information on these changes, see our article here).

The 20 percent increase in the BCA’s budget will be used to recruit personnel and to invest in (1) new IT infrastructure and support, (2) knowledge management and internal processes and more specifically the available enforcement instruments (such as surveys, e-discovery, anonymous whistleblower tools, etc).

The BCA will, in the future, set up a special “merger control team” which will, according to the BCA, lead to the more efficient processing of merger notifications and to increased capacity to deal with investigations into anticompetitive practices (on the basis of ex officio investigations). The Notice also explains that there will be further strengthening of the expertise regarding the implementation of the Law on economic dependency (enshrined in the CEL).

The BCA’s increased budget will also allow the BCA to be more active in relation to its informal and strategic policy – and in particular it will lead to an increase / strengthening of already existing collaborations with ECN working groups and national and international regulators. As an example of collaborations with national regulators, the BCA refers to the Price Observatory and the National Bank of Belgium.

Another strategic priority for the BCA will be the sectors positively or negatively impacted by the COVID-19 crisis, in particular where impact is reinforced by the increased digitalisation of society. The BCA makes explicit reference to:

The BCA explains that competition is the motor of innovation which, in turn, is necessary to develop new, green technologies. As per the Notice, healthy competition encourages companies to use scarce raw materials and resources efficiently and ensures that new innovative products are offered to consumers at affordable prices. A healthy, well-functioning competition policy is therefore an important factor in promoting innovation and technological development to contribute to the further greening of the Belgian economy. In line with initiatives from other Member States, the BCA will also take additional steps in developing its position on, inter alia, how competition rules correspond with sustainable policy measures and how it can further support that policy, in particular in relation to the application of competition law to sustainability agreements. To this end, the BCA will also provide additional informal advice and interact with various stakeholders as part of its advocacy policy.

Thanks to an increase in its budget, the BCA now also has more resources to “tackle new challenges”, such as competition in labour markets. This follows a trend seen in other EU countries in the last few years. For example, in Hungary, France and Portugal the national competition law authorities have investigated so-called wage-fixing and/or “no poach” agreements (i.e. where companies agree not to hire each other’s employees).

The European Commission has not yet taken any enforcement action against no-poach agreements. However, in a speech on October 22, 2021, EU Competition Commissioner Margrethe Vestager referred to the harm caused “when companies collude to fix the wages they pay; or when they use so-called “no-poach” agreements as an indirect way to keep wages down, restricting talent from moving where it serves the economy best”, implying that the European Commission will not shy away from enforcement action in this area.

No-poach agreements have already been a hot topic in the US for several years. One of the latest developments is the antitrust case brought against DaVita and its former CEO, which constituted the first criminal “no poach” trial ever prosecuted by the DOJ. McDermott successfully represented DaVita and its former CEO in this case (for more information, see here and here).

Priority Sectors for 2022

The BCA has identified the following sectors as being a “priority” for 2022:

The sports sector – new to the list. The BCA highlights the fact that the sports sector has become an important economic sector and refers to its previous enforcement practice in the industry. Going forward, the BCA will, based on expertise already acquired, pay greater attention to enforcement of competition rules in the sports sector, focusing on fair access to sport leagues, the organisation of sports competitions and events, no poaching agreements, and the rise of e-sports and (online) sports betting.


© 2024 McDermott Will & Emery
National Law Review, Volumess XII, Number 137