On 21 November 2016, the Competition College of the Belgian Competition Authority (“BCA”) rejected a request of Brouwerijen Alken-Maes (“Alken-Maes”) to suspend the acquisition of Brouwerij Bosteels (“Bosteels”) by Anheuser-Busch InBev NV (“AB InBev”).
AB InBev’s takeover of Bosteels was not subject to prior notification to, and approval by, the BCA since Bosteel is a small independent brewery with a turnover in Belgium well below the pertinent notification threshold of € 40 million.
Alken-Maes still requested the suspension of the acquisition and argued before the BCA that even if this acquisition was not caught by merger control rules, it had to be reviewed under Article IV.2 of the Code of Economic Law and Article 102 of the Treaty on the Functioning of the European Union, both of which prohibit the abuse of a dominant position. Alken-Maes contended that the acquisition constituted an abuse of AB InBev’s dominant position as it would enable AB InBev to acquire the brand Triple Karmeliet, thus significantly strengthening its dominant position. Therefore, Alken-Maes requested the BCA to adopt interim measures suspending the implementation of the concentration.
The BCA first noted that Belgian competition law does not explicitly provide that antitrust rules do not apply to concentrations.
However, the BCA held that an acquisition that is not subject to merger control can only be assessed prima facie under the rules prohibiting the abuse of a dominant position if there are possible restrictions on competition that can be distinguished from the mere effect of the concentration and might by themselves be qualified prima facie as an abuse of a dominant position.
The BCA found that Alken-Maes had not sufficiently proven that the concentration restricted competition in a way that was distinguishable from the mere effect of the concentration. Therefore, there was no behaviour which could, as such, be considered prima facie as an abuse of AB InBev’s dominant position requiring the adoption of interim measures. The BCA concluded that, if such restrictions were to take place, the BCA would then tackle them as appropriate.