BELGIUM Law and Practice Contributed by: Thomas Lenné, Mathias Hendrickx, Valentijn de Boe and Bram Devlies, Loyens & Loeff
7.2 Restrictions As mentioned, the possibility of carrying out due dili- gence is restricted by MAR and its prohibition on the disclosure of inside information and insider trading. Further, any processing of personal data during the due diligence has to respect the General Data Protec- tion Regulation (GDPR) (in force from 25 May 2018) and the Belgian law of 30 July 2018 relating to the protection of natural persons with regard to the pro- cessing of personal data. Personal data may only be shared where a valid legal basis applies. In the context of a due diligence exer- cise, the seller and the buyer may usually rely on the legal basis of safeguarding their legitimate interests (ie, where the exchange of information is necessary for evaluating and completing the sale of a business or shares and this interest is not overridden by the fundamental rights and freedoms of the persons con- cerned). Where processing is justified on this ground, it is good practice to carry out and document a legiti- mate interest assessment to demonstrate compliance. In this context, parties will also need to consider which personal data is actually necessary to be disclosed in the context of due diligence (and limit disclosures to only such necessary personal data) and, where appro- priate, work in multiple phases of disclosure (providing additional details as the due diligence evolves and the pool of interested buyers – especially in an action pro- cess – becomes smaller). Where due diligence is pos- sible on the basis of anonymised or pseudonymised data, this should be the preferred option. Certain categories of personal data, such as health data, data on racial or ethnic origin, and trade union affiliation (Article 9 of the GDPR), or data regarding criminal offences or convictions (Article 10 of the GDPR) require a specific legal basis. In general, the lawful grounds for handling this type of data do not extend to M&A transactions. As a result, such data should not be circulated during the transaction unless they have been anonymised to the point that no data subject is still identifiable. In addition to determining a legal basis, the seller and the buyer must comply with the general principles that apply to any processing of personal data and must
and mandatory energy audits and accounting for investment support applications. Investment sub- sidies are available, with rates up to 50% for SMEs and 20–30% for large companies. Key Developments Several types of conventional non-renewable energy projects have been out-competed in Belgium. How- ever, Belgium’s Capacity Remuneration Mechanism (CRM) is one of the most significant developments in the sector of conventional energy sources. Introduced in 2021, the CRM was designed to safe- guard long-term security of electricity supply during Belgium’s nuclear phase-out and growing depend- ence on intermittent renewable energy sources. It is a technology-neutral support mechanism that rewards capacity providers for being available during periods of peak demand or system stress. Capacity is awarded through annual competitive auc- tions, starting with deliveries from 2025 onwards, and is open to all technologies – including generation, storage (such as BESS), and demand-side response. The mechanism aims to incentivise new investments and the modernisation of existing assets. 7. Due Diligence/Data Privacy 7.1 Energy and Infrastructure Company Due Diligence There is no obligation for a target to actively share information with an interested bidder, so if the target is unwilling to co-operate, the bidder will be limited to the information the target is legally required to make public. Even if a target is willing to co-operate with the bidder, it would do well to carefully consider which informa- tion it shares, as any information shared with one bid - der must also be shared in case a competing bidder emerges. The target board should always act in the target’s corporate interest if it decides to share certain information, and may be restricted by specific legisla- tion; eg, the MAR’s prohibition on unlawful disclosure of inside information.
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