BELGIUM Law and Practice Contributed by: Thomas Lenné, Mathias Hendrickx, Valentijn de Boe and Bram Devlies, Loyens & Loeff
actual launching of the bid in the event that not all conditions were met – eg, prior competition clearance (in another jurisdiction). In any case, it is not uncom- mon for bidders to subject the actual launching of a bid to regulatory approval, such as competition and foreign direct investment (FDI) clearance. 4.15 Privately Held Companies Privately held companies active in the E&I market are typically acquired by means of a transfer of all (or part) of the shares in the target company. It is not uncom- mon in such cases that the founding shareholders or key personnel re-invest (in the purchaser) within the framework of such sale. Alternatively, companies may also be acquired by means of a merger. For key considerations, refer to 2.2 Liquidity Events and 3. Spin-Offs . 5. Overview of Regulatory Requirements 5.1 Regulations Applicable to Energy and Infrastructure Companies In the energy sector, large-scale production assets are subject to a specific production permit, and large- scale BESS to a storage permit, both to be awarded by the Energy Minister. Supply activities are subject to a gas supply or electricity supply licence, depend- ing on the applicable region and the quantities/volt- age level, this is awarded by the regional regulators (CWAPE, VNR, and Brugel) or by federal energy regu- lator CREG. Timelines to obtain these vary from region to region and from permit to permit. 5.2 Primary Securities Market Regulators The primary securities market regulator for public M&A transactions in Belgium is the Financial Services and Markets Authority (FSMA). 5.3 Restrictions on Foreign Investments In 2023, Belgium implemented its FDI screening mechanism, as set out in the Cooperation Agree- ment (CA) of 30 November 2022. This mechanism is designed to assess transactions involving non-EU investors and Belgian entities operating in specific sectors listed in the CA.
Under the CA, any investment by a foreign investor that results in the direct or indirect acquisition of 10% or 25% or more of the voting rights in a Belgian entity active in a listed sector must be notified to the Belgian Interfederal Screening Committee (ISC). Notably, the presence of a Belgian subsidiary alone can trigger a filing obligation. The CA also explicitly includes inter- nal group reorganisations within its scope, meaning that such transactions must be notified if the other conditions are met. The ISC reviews transactions to evaluate potential risks to national security, public order, and the strate- gic interests of Belgium’s federal entities. During this review, the parties are prohibited from closing the transaction until the ISC grants approval. As a result, M&A documentation should include provisions (eg, a condition precedent) on ISC approval, along with clauses addressing information sharing and liability in case the ISC requests additional information. In a nutshell, the ISC’s review process consists of two phases. • Initial Review Phase (30 days) – the ISC members examine the documentation submitted by the purchaser. • Screening Phase – this may be initiated if, during the initial review, at least one ISC member identifies indicators that the transaction could affect pub- lic order, national security, or strategic interests. The National Security Council may also request a screening. The ISC may, at the end of the review and/or screen- ing phase, take one of the following decisions. • Authorisation – the contemplated transaction is admissible without condition. • Conditional authorisation – the contemplated transaction is admissible, provided that the inves- tor agrees to implement corrective measures (eg, security protocol, governance changes, and restrictions on access to sensitive data). • Prohibition – the contemplated transaction is inad- missible due to non-remediable risks to national security, public order, or strategic interests.
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