BELGIUM Law and Practice Contributed by: Thomas Lenné, Mathias Hendrickx, Valentijn de Boe and Bram Devlies, Loyens & Loeff
If the proposed transaction is completed without receiving approval, or in defiance of a prohibition issued by the ISC, the investor may be subject to an administrative fine of up to 30% of the Belgian por- tion of the transaction. Additionally, legal action may be taken to prevent the transaction from proceeding or to reverse it after completion. 5.4 National Security Review/Export Control See 5.3 Restrictions on Foreign Investments regard- ing foreign investment screening. Belgium has implemented the EU Dual-use Regula- tion (821/2021) which subjects the export of dual-use items listed in Annex I of the EU Dual-use Regulation to an authorisation requirement. Further, military items and other equipment suitable for military use are sub- Any concentration transaction of a certain scope in terms of turnover (see below) requires the prior approval of the Belgian Competition Authority (BCA) and, in certain cases, of the European Commission. Concentrations With a Belgian Dimension A “merger” within the meaning of the applicable Bel- gian legislation refers to an operation that results in a lasting change of control of an undertaking; in other words, the possibility of exercising decisive influence over its activity. This can apply to both acquisitions and joint-venture transactions. It is only necessary to notify the BCA of mergers that meet the following turnover thresholds: • undertakings with a total turnover in Belgium of more than EUR100 million; or • at least two of the undertakings each generate a turnover in Belgium of at least EUR40 million. Concentrations With a European Dimension Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between under- takings defines under which conditions a merger is said to have a European dimension. There are two options. ject to national export controls. 5.5 Antitrust Regulations
• Option 1: (a) a combined worldwide turnover of the under- takings concerned of more than EUR5,000 million; or (b) a turnover of more than EUR250 million within the European Union for at least two of the un- dertakings concerned. • Option 2: (a) a combined worldwide turnover of the under- takings concerned of more than EUR2.5 billion; (b) a combined turnover of the undertakings con- cerned of more than EUR100 million in at least three member states; (c) a turnover of more than EUR25 million for at least two of the undertakings concerned in each of the three member states referred to in b) above; or (d) a turnover of more than EUR100 million within the European Union for at least two of the undertakings concerned. Nevertheless, mergers reaching these thresholds do not have to be declared to the European Commission if each of the undertakings concerned generates more than two thirds of its total European Union turnover within a single member state. Mergers subject to investigation by the European Commission do not require to be investigated by the BCA. However, under certain conditions, the Com- mission may refer a merger that had been submitted to it to the BCA. One of these conditions is the fact that the merger could appreciably affect competition within the Belgian market. 5.6 Labour Law Regulations Acquirers must primarily consider the labour law pro- tections around employee consultation and informa- tion rights. The main requirements oblige employers to inform and consult the works council (or, in its absence, the trade union delegation or, in its absence, the health and safety committee). Where no such bod- ies are in place, obligations may still exist vis-à-vis the employees directly, but they are then limited to mere information. The works council must be informed in advance of the contemplated transaction and consulted on its
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