Bills to Reform Belgian Competition Act

On 27 December 2012, the Belgian federal government introduced two draft bills aimed at reforming Belgian competition law. These bills are expected to be adopted in February 2013 but will not enter into force before 1 April 2013 at the earliest.

While the draft legislation does not affect the substance of the Belgian competition rules on anti-competitive agreements, abuse of a dominant position and merger control, it introduces a number of important procedural reforms.

Most notably, the bills introduce the possibility for the Competition Authority to fine individuals who were involved in "hardcore" infringements of competition law, such as price-fixing cartels. In return, these individuals also become eligible for immunity from fines as part of the leniency programme.

The draft legislation also brings about a significant reform of the Belgian Competition Authority ("BCA"), which will be set up as a single, independent authority but will be divided in four distinct divisions with separate tasks. The BCA will consist of (i) a President; (ii) a Competition College; (iii) a Management Committee; and (iv) a College of Prosecutors headed by a Chief Prosecutor.

In order to ensure that the new Competition Authority remains fully independent, the draft legislation puts an end to the current powers of the Council of Ministers to overrule a merger control prohibition decision adopted by the Competition Authority (a power which the Council of Ministers never made use of).

The draft legislation also improves the Competition Authority's decision-making process, codifies the existing leniency procedure, introduces a settlement procedure and provides for more efficient interim measure procedures. In line with a recent ruling of the Belgian Constitutional Court (see VBB on Competition Law, Volume 2012, No. 12, available at www.vbb.com), the draft legislation also provides that antitrust fines are not tax deductible.

Finally, the draft legislation broadens the powers of the existing Price Observatory, which will be in charge of the detection of any "problems regarding prices or margins, abnormal pricing developments or structural market problems". Any finding of such supposed pricing anomalies will be transmitted to the Competition Authority for further review. In addition, the government will be given the power to take structural measures