Reform of Belgian Competition Law: Draft Bill

On 16 November 2018, the Belgian Council of Ministers adopted a draft Bill (the “Draft Bill”) amending numerous competition law provisions of the Belgian Code of Economic Law (“CEL”).  While the Draft Bill will not bring about major substantive or procedural changes to the current competition rules and will also maintain the prevailing institutional architecture, a new text will replace in full Book IV of the CEL on the “Protection of Competition”.

The Draft Bill aims to improve compliance with competition law and the functioning of the Belgian Competition Authority (“BCA”) in order to enhance the efficiency of its procedures.  In this respect, the Draft Bill will simplify and unify existing procedures, cure difficulties of application, resolve issues of interpretation, remedy shortcomings and include amendments to reflect practical experience.

Despite this ostensibly modest objective, it is understood that the Draft Bill – the text of which is not yet public – will contain, inter alia, the following novelties:

  • Increased cap on fines – The maximum amount of fines that the BCA can impose will be increased from 10% of the Belgian turnover of the undertaking concerned to 10% of its worldwide turnover.
  • Competition infringements by individuals – Unless the individual should be regarded as an undertaking, an infringement by an individual will be ancillary to the infringement committed by the legal person on whose behalf the individual acted.
  • Commitments in behavioural cases – The competition prosecutor will have the power to formally terminate proceedings in view of the commitments offered by the party under investigation (this is currently the exclusive prerogative of the Competition College).
  • New rules governing requests for interim measures – The Competition College will be expressly required to balance all interests at stake when assessing the merits of a request for interim measures.    
  • Dawn Raids – The investigating magistrate for Brussels will be competent to authorise on-site inspections within the entire Belgian territory.
  • New rules governing the use of languages.
  • New rules governing confidentiality before the Brussels Court of Appeal (Market Court).

The Draft Bill is now being reviewed by the Belgian Council of State (“Raad van Staat”/“Conseil d’Etat”) before being approved a second and final time by the Council of Ministers which will then submit the text to the Belgian Parliament. The government will have to rush the Draft Bill through Parliament before that body’s dissolution in view of the upcoming elections currently scheduled to take place on 26 May 2019 in Belgium.

By Martin Favart and Peter L’Ecluse