Yes. Belgian merger control is governed by the provisions incorporated in Book IV of the Code of Economic Law on the protection of competition ("Competition Act"). The Competition Act is implemented by two Royal Decrees, both of 30 August 2013, respectively on the notification of concentrations and on the procedures concerning the protection of competition. Lastly, there is a specific set of rules regarding the simplified notification procedure, embodied in the decision of the General Assembly of the (former) Competition Council, adopted on 8 June 2007, and still applied today by the Belgian Competition Authority ("BCA"). On 8 January 2020, the Management Committee of the BCA approved additional rules regarding the simplified procedure for concentrations

The relevant national regulatory agency responsible for merger control in Belgium is the BCA. The BCA is an independent body composed of a President (and his service), Competition College, Management Committee and College of Competition Prosecutors headed by the Competition Prosecutor General. Notifications of concentrations are to be submitted to the Competition Prosecutor General, who will then designate a Competition Prosecutor to lead the merger investigation. The appointed Competition Prosecutor will, post-investigation, lodge a motivated draft decision with the President, who will then compose a Competition College that will decide on the concentration. When it concerns a simplified procedure, the Competition Prosecutors can issue decisions without the involvement of the Competition College. Decisions rendered can be the subject of an appeal, before the Brussels Market Court which is a section in the Court of Appeal.

Yes, the European Commission. If the thresholds provided in Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings ("EUMR") are met and the concentration thus has a Union dimension, the European Commission will be exclusively competent to assess the proposed concentration (with the exception of some specific cases mentioned in the EUMR).

The Competition Act provides that concentrations must be notified either jointly by the parties (if the concentration constitutes the creation of a new undertaking or if it concerns the acquisition of joint control), or by the acquirer alone (in case of the acquisition of sole control). The notification takes place using the specific notification form C/C (or C/C-V/S in case of a simplified procedure) that is attached to the Royal Decree of 30 August 2013 on the notification of concentrations of undertakings. Further, certain documents must be submitted, that are listed in the same Royal Decree. (See answer below to "What are the form and content of the initial filing?")

The Belgian merger control provisions of the Code of Economic Law apply to all concentrations that meet the therein outlined thresholds. The definition of a concentration is similar to that under the EUMR. It covers all transactions where a change of control on a lasting basis results from:

(i) the merger of two or more previously independent undertakings or parts of undertakings;
(ii) the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether by the purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts of one or more other undertakings; or
the creation of a joint venture performing on a lasting basis all the functions of an autonomous economic entity (a ‘full-function’ joint venture).

Control can be established through rights, agreements or any other means which confer the ability to exercise decisive influence over the activities of an undertaking, in particular through:

ownership or the right to use all/parts of the assets of an undertaking; or
rights or agreements that confer a decisive influence on the composition, the exercise of voting power or the decisions of the organs of the undertaking.

No concentration is deemed to arise where:

(i) Credit institutions, other financial institutions or insurance companies hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling them, provided that they do not exercise the voting rights related to those securities in order to determine the competitive behavior of the undertaking, or provided that they exercise such voting rights only with a view to preparing the disposal of all or part of that undertaking or of its assets or the disposal of those securities, and that any such disposal takes place within one year of the date of acquisition. This period will be two years when the securities were acquired as proof of dubious or unpaid claims;
(ii) control is acquired by a court-appointed official or government official on the basis of a judicial decision or any other procedure of compulsory liquidation; (iii) or
control is acquired by the financial holding undertakings referred to in Article 2(15) of Directive 2013/34/EU of the European Parliament and of the Council of 26 June 2013, provided that such control is not used to determine directly or indirectly the competitive conduct of the undertaking concerned but to secure the total value of the investments.

All changes of control are subject to merger control and should be notified. Hence, if a minority investment results in the possibility of exercising a decisive influence on an undertaking, it will be caught by the merger control regime. Such decisive influence can, for example, be the consequence of certain rights attached to assets (e.g. veto rights over strategic decisions on the business plan or budget), or can be due to a certain composition of the board. In this connection, the BCA will apply the same assessment as the European Commission would.

In its decision of 30 October 2006 in Belgacom SA/Vodafone Belgium SA/Belgacom Mobile SA, the BCA acknowledged that there may be joint control where minority shareholders have additional rights that allow them to veto decisions that are essential for the strategic commercial behavior of the joint venture. On 21 October 2013, the BCA held in Picanol NV/Tessenderlo Chemie NV that Picanol NV, by purchasing 27.6 percent of the shares in Tessenderlo Chemie NV, acquired de facto control over the latter as the remaining shares were dispersed among a large number of shareholders.

The merger control provisions apply without distinction to both local and foreign-to-foreign concentrations. Hence, if the thresholds provided are met, the concentration will in any case have to be notified. Given that the thresholds are only turnover-related, foreign-to-foreign concentrations will have to be notified when there is a certain amount of sales in Belgium, irrespective of whether the parties concerned have assets in Belgium.

The thresholds for notification are based on the turnovers of the parties concerned. Concentrations must be notified if the following cumulative conditions are met:

1. The parties concerned generate in Belgium an aggregate turnover exceeding EUR 100 million; (ii) and
   at least two of the parties concerned generate in Belgium a turnover of at least EUR 40 million.

The turnover is calculated on the basis of the figures of the preceding financial year and comprises the whole group (thus including the turnover of all the undertakings controlling the parties concerned as well as all the undertakings controlled by the parties concerned). It is the amount resulting from sales of goods/services in Belgium, after the deduction of discounts and not including turnover-relating taxes.

If the concentration concerns the acquisition of parts of an undertaking, the turnover that has to be taken into account with respect to the seller is only the turnover relating to those parts. If several concentrations regarding parts of an undertaking take place between the same parties within a period of two years, all those acquisitions should be considered as one concentration.

As regards credit and other financial institutions, the Competition Act provides specific rules. For those institutions, the turnover consists of the sum of – after deduction of VAT and other related taxes:

interest and related income;
income from securities; and - Commissions received;
net gain from financial transactions; and
other operating revenues.

With regard to insurance undertakings, the merger control provisions determine that the turnover is the value of all gross premiums issued. This comprises all amounts received/to be received on the basis of insurance contracts concluded by those undertakings (or on their behalf), including outgoing reinsurance premiums, and after deduction of taxes and parafiscal contributions or levies charged by reference to the amounts of individual premiums or the total volume of premiums. The gross premiums paid by residents in Belgium are taken into account.

If certain conditions are met, the Parties can request the application of a simplified procedure. This simplified procedure is applicable if:

(i) Two or more undertakings will acquire joint control over an undertaking that has / will have no / limited activities in Belgium. This is the case when:

(a) The turnover of that undertaking and/or of its contributing activities in Belgium is less than EUR 40 million, and
(b) The total value of that undertaking’s assets in Belgium is less than EUR 40 million.

(ii) None of the parties involved in the concentration performs activities in the same product and geographic market, or in a product market upstream or downstream from the product market in which another party concerned is active.
(iii) Two or more undertakings merge, or gain sole or joint control over another undertaking, and:

(a) Two or more of the parties concerned have activities in the same product and geographic market, but their combined market share is less than 25 %;
(b) Two or more of the parties concerned have activities in a product market upstream or downstream from the product market in which another party is active, but their separate or combined market share is less than 25 percent.

(iv) A party acquires sole control over an undertaking over which it already has joint control.
 
On 20 January 2020, the BCA expanded the scope of the simplified procedure. Under these additional rules, transactions that satisfy two

conditions are eligible for the simplified procedure: (i) the cumulative market share of all parties “having horizontal relationships” remains below 50%; (ii) the Herfindahl-Hirschman index delta resulting from the transaction is below 150 or the transaction results in less than 2% increment in market shares.

Finally, the BCA can apply the simplified procedure in two cases “when it considers, in view of all relevant circumstances, that there is no doubt on the admissibility of the concentration and that it does not raise any objections”:

(i) in horizontal mergers, when the parties are active on the same (product and geographic) market and their cumulative market shares are above 25% but below 40%; and (ii) in vertical mergers, when the parties operate at different levels of the supply chain and their market shares on vertically related markets are above 25% but below 40%.

The concentration is not subject to notification to the BCA if the thresholds provided in the EUMR are met; the European Commission then has exclusive competence to assess the merger.

When the thresholds are met, notification of the concentration is mandatory.

In principle, concentrations must be notified after the closing of the agreement governing the concentration, publication of the takeover bid or offer of exchange, or acquisition of a controlling interest, but before the implementation of the concentration. Draft agreements may however also be notified, but only if all the parties involved declare expressly that they intend to conclude an agreement that will not appreciably differ from the notified draft agreement for what concerns all the points relevant from a competition law point of view. In case of a public takeover bid or offer of exchange, the parties can proceed to notify when they have publicly announced their intention to make such a bid/offer.

The Belgian merger control regime provides that a concentration may not be implemented as long as no decision has been taken clearing the concentration. The President of the BCA can, upon request of the parties concerned, provide an exemption to this stand-still obligation. Such exemption was provided several times in the past, depending on various reasons such as the urgency of the transaction, the necessity of some safeguarding measures or continuity of business.

This suspension obligation does not prevent the implementation of a public takeover bid or offer of exchange, or of a series of transactions with financial instruments, provided that:

• the concentration is notified to the Competition Prosecutor General without delay; and
• the acquirer does not exercise the voting rights related to the financial instruments or only exercises
• those rights in order to maintain the full value of his investments and this is on the basis of a derogation granted by the President of the BCA.

Notifications of concentrations must be submitted as prescribed in Form CONC C/C. A model of this Form CONC C/C is attached to the Royal Decree of 30 August 2013 on the notification of mergers of undertakings. The form should be fully filled in using the numbering and paragraphing provided in the model, except when a derogation from this obligation is requested and granted. Detailed information must be provided, regarding the parties concerned as well as their links of ownership and control, the concentration itself, and the relevant product and geographic market(s) and their supply and demand structure and barriers to entry. Further, the form should be redacted either in Dutch or French, whichever the parties prefer. The supporting documents attached must be transmitted in their original language. However, if this language is neither English nor an official Belgian language (Dutch, French or German), the documents must also be translated into the language chosen for the notification. The submitted supporting documents can be either originals or copies. The parties can identify the information they consider to be business secrets as confidential, in order to have this information not be made public. Three paper copies of the form must be sent to the Competition Prosecutor General, as well as an electronic version. If the concentration is notified under the simplified procedure, a Form CONC C/C-V/S must be submitted. This form is identical to the Form CONC C/C, except for the omission of certain parts of the Form CONC C/C. But, although less information should be submitted, the amount of information to be submitted is still significant.

The Law of 28 February 2022 transposing Directive (EU) 2019/1 introduced a fee for merger notifications. Notifying parties will have to pay a flat-rate fee (“filing fee”) depending on whether they meet the conditions for a simplified procedure or not. For a concentration that meets the conditions for the simplified procedure, the amount is EUR 17,450. For a concentration not fulfilling the conditions of a simplified procedure the amount to pay is EUR 52,350. From 2023 onwards, the filing fee will be indexed according to the consumer price index. The filing fee can be amended by Royal Decree.

There are two possible merger review processes; the ‘normal’ procedure and the simplified procedure. The non-simplified merger review process consists of two phases. The first phase of the procedure starts upon notification. A Competition Prosecutor and his or her case team conduct the investigation, and file a draft decision with the Competition College. The President will appoint a Competition College, which must make a decision (“First Phase Decision”) no later than 40 working days after notification. If no decision is taken within this period, the transaction is deemed to be approved. This decision period cannot be extended, unless upon explicit request of the notifying party. If the Prosecutor believes that the concentration might significantly impede competition, the notifying party is given the opportunity to submit remedies. In this case, the decision period is extended by 15 working days, to a total of 55 working days. If the Competition College decides that the concentration raises serious doubts as to its compatibility, it has to decide to initiate second-phase proceedings. A 60 working days’ investigation is then carried out, at the end of which the final decision must be taken (“Second-Phase Decision”). Again, the Competition Prosecutor and his or her team conduct an investigation, more in-depth this time, and files a draft decision with the College. If the College does not take its decision within 60 working days, the concentration is deemed to be approved. If remedies are offered by the parties, the second phase will be increased by 20 working days, to a total of 80 working days. Where the conditions for the application of this procedure are met, the notifying party can request the application of the simplified procedure. The Competition Prosecutor appointed will then issue a written decision to the parties within 15 working days of the receipt of the simplified notification which requires less, but still a substantial amount of information to be submitted, notably with regards to the market definition). If the Competition Prosecutor does not issue its written decision within 15 working days, the concentration is deemed to be approved. A positive decision has the same legal value as the clearance decision issued by the Competition College. However, the Competition Prosecutor can also decide that the conditions for a simplified procedure are not fulfilled, or that there are doubts concerning the compatibility of the transaction. In such circumstances, the traditional procedure will apply.

Also, following the notification, if a formal request for information (“RFI") is addressed to the notifying party, the time period is suspended until the response to the RFI has been submitted or until the time limit for the reply is passed.

The test provided by the Belgian Competition Act is similar to the test set out in the EUMR. The ex-ante substantive test more specifically consists of an assessment as to whether the concentration “significantly impedes effective competition” ("SIEC Test") in the Belgian market or in a substantial part of it, for instance by creating or strengthening a dominant position. Concentrations that significantly impede effective competition must be blocked, and the rest cleared. Further, the Competition Act provides that when the parties concerned have a combined share of less than 25 percent on any of the markets relevant for the transaction, the concentration must be cleared, regardless of whether the parties have a vertical or horizontal relationship.

The Competition Act provides that the Competition College may, by motivated decision, decide the following:

1. the concentration does not fall within the scope of the Competition Act;
2. the concentration is approved;
3. the concentration is approved with conditions and/or obligations (structural or behavioral). Remedies are discussed with the parties (who have a right to be heard) and thus not imposed unilaterally by the College, and the concentration is not permissible.

Yes, parties can address competition concerns by providing commitments (behavioral and/or structural), both in the first and in the second phase of the proceedings. If the Competition Prosecutor considers (in the first phase) that effective competition on the market could be impeded by the concentration, it informs the parties concerned thereof. The parties can then propose remedies within a period of five days in order to have the concentration cleared. The Competition Prosecutor will formulate its opinion on the proposed remedies in its draft decision, and the Competition College will take them into account when making its decision. If commitments are submitted, the time period during which the Competition College must review the concentration in the first phase is extended to 15 days. If a second phase investigation is opened, the parties have a maximum of 20 working days from the day on which the second phase is opened to submit remedies. Please see our response to "Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency?". The Competition College may impose obligations to make sure the proposed and accepted remedies are complied with.

Both in case of a failure to notify a concentration or when the information provided during notification is incorrect or incomplete, the Competition College can impose a fine, which can go up to 1 percent of the annual consolidated turnover. In case of incomplete notification form, the time period for the decision in the first phase will only start to run when the information has been completed.

If a concentration is notified but implemented before clearance, two violations take place (i) a violation of the obligation to notify the concentration before implementation, and (ii) a violation of the prohibition to implement the concentration before clearance. For the first violation, the Competition College can impose on persons/undertakings/associations of undertakings concerned a fine mounting up to 1 percent of their consolidated global turnover from the preceding financial year. For the second violation, the Competition College can impose a fine of up to 10 percent. In addition, the Competition College can, upon request of the Competition Prosecutor, impose on each of those undertakings or associations of undertakings a periodic penalty, of up to 5 percent of the average daily turnover per day of delay, starting on the day of the decision. In case a concentration is implemented despite a decision of the Competition College prohibiting that merger, the Competition College can also impose a fine of up to 10 percent of the consolidated turnover of the persons/undertakings/associations of undertakings concerned.

Concentrations must only be notified and can only be subject to merger control if the EU turnover thresholds are met. However, one or more EU Member States may request the European Commission to examine any concentration that does not meet the EU merger thresholds where the concentration "affects trade between Member States and threatens to significantly affect competition within the territory of the Member State(s) making the request" (so-called “Article 22 Referral”). As a matter of policy, the European Commission is now stimulating such Article 22 Referrals in particular for “killer acquisitions” in the digital and pharma sector, as further explained in the Commission’s Guidance on the application of the referral mechanism set out in Article 22 of the EUMR to certain categories of cases (26 March 2021). Also, a concentration that is capable of being reviewed under the national competition laws of at least three EU Member States may be referred up to the European Commission by means of a reasoned submission.

There have been a couple of important developments on Article 22 referrals: in August 2023, the European Commission accepted referral requests of 7 Member States, including Belgium, regarding the proposed acquisition of Autotalks by Qualcomm, despite the proposed transaction neither meeting the notification thresholds of the EUMR either any national thresholds.

On 16 March 2023, the CJEU held in Towercast (C-449/21) that “a concentration operation which does not meet the respective thresholds for prior control laid down by Regulation No 139/2004 and by the applicable national law may be subject to Article 102 TFEU where the conditions laid down in that article for establishing the existence of an abuse of a dominant position are satisfied”. The national authority needs to verify that the dominant undertaking acquiring another undertaking does not substantially impede competition in the market. The mere strengthening of the dominant position is not enough, a substantial impediment to competition is necessary.

Following the Towercast judgment, the BCA opened on 22 March 2023 an investigation into an alleged abuse of dominance by Proximus in the context of its proposed acquisition of Edpnet, which was not caught by merger control rules.

On 12 April 2023, the Competition Prosecutor General used for the first time ever his statutory right to request interim measures to ensure the continuity of Edpnet's activities as well as its operational and commercial independence for the duration of the investigation. On 21 June 2023, the Competition College found that the Competition Prosecutor General had proven the prima facie existence of an abuse of dominance by Proximus resulting from the takeover of Edpnet and imposed the following interim measures:

(i) maintaining the viability and competitiveness of Edpnet; (ii) keeping its activities and those of Edpnet entirely separate; and (iii) ensuring that Proximus does not obtain any confidential information from Edpnet.

The interim measures are applicable for a period of 15 months and may be extended. Their application will be monitored by an independent trustee.

In case the thresholds are met, notification is compulsory as noted in our response to "Is the filing voluntary or mandatory?". Hence, should an undertaking or association of undertakings implement a transaction without notifying it, the Competition College can take a decision imposing sanctions as noted in our response to "Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger.". If the transaction does not meet the thresholds and therefore does not have to be notified, the agency, cannot challenge or examine the transaction, but may refer the transaction to the European Commission, as noted in our response to "Can the agency review and/or challenge mergers that are not notifiable?".

In that regard, Article 22 referrals are to be made by the Member States within 15 working days of the date on which the concentration was notified, or if no notification is required, otherwise made known to the Member State concerned. The European Commission then informs the competition authorities of the Member States and the undertakings concerned of such requests. Within 15 working days of being informed, any Member State has the right to join the initial request. Then, the European Commission decides whether to examine the transaction referred.

While Article 22 referrals of transactions on which the national competition authorities did not have a jurisdiction were long discouraged by the European Commission, such referrals have gained importance lately.

If the transaction is not to be notified as a merger, it can still be subject to review under Articles 101 or 102 TFEU or its equivalents under Belgian law, if the conditions for these prohibitions are met.

Pre-notification contacts with the College of Competition Prosecutors are mandatory. They can be protracted, even in case of what eventually will prove to be a merger control under the simplified procedure. During the pre-notification period, the Competition Prosecutors will possibly already conduct a market test, in order to be able to request specific information of the parties to be filled out in the notification form. At present, the time period between the first pre-notification contact and the clearance in the first phase, even without remedies, can be up to 3 to 4 months, whereas the same period in the case of a simplified procedure can be up to 2 months or more. As far as remedies are concerned, the BCA is reluctant to order an investigation in a second phase and would prefer that commitments be proposed and remedies imposed at the outset of the first phase.

Not applicable.