BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
2.2 Failure to Notify Under Article IV.79 (1) of the CEL, the BCA may fine parties up to 10% of their consolidated worldwide turnover if they fail to notify a concentration, and may impose periodic penalty payments of up to 5% of their average worldwide daily turnover for each day of non- compliance. In Cordeel / Imtech , the BCA fined Cordeel Group NV EUR5,000 for breaching the notification and standstill obligations in its acquisition of Imtech Belgium Hold - ing NV and Imtech België NV. In adopting this low fine, the BCA considered that the breach was the result of negligence rather than intent, as it occurred under exceptional pressure from an impending bankruptcy of the target, involved a low-value transaction, and could have qualified for a simplified notification pro - cedure (Decision No 2015-C/C-79 of 23 December 2015). 2.3 Types of Transactions The merger control regime applies only to transactions that qualify as “concentrations”. Article IV.6 of the CEL defines a concentration as a transaction that results in a change of control on a lasting basis, which may occur through: • the merger of two or more previously independent undertakings or parts of undertakings; • the acquisition, by one or more persons already controlling at least one other undertaking, of direct or indirect control over one or more other undertak - ings or parts thereof, whether by purchase of secu - rities or assets, by contract or by other means; or • the creation of a joint venture (JV) that performs, on a lasting basis, all the functions of an autonomous economic entity. For a transaction to be considered a concentration, it must thus give rise to a change of control. The man - ner in which this change of control occurs is immate - rial. In the absence of a change of control, internal restructurings or reorganisations do not qualify as concentrations. 2.4 Definition of “Control” Control is defined as the ability to exercise decisive influence over the activities of an undertaking, based
exempts from the general merger control regime trans - actions between “authorised hospitals” and mergers resulting in the creation or modification of a “locore - gional clinical hospital network”, both as defined by the law. However, this exemption only relates to trans - actions involving small hospitals and does not apply if each hospital has an individual turnover of at least EUR250 million and their combined turnover is at least EUR900 million. 1.3 Enforcement Authorities The BCA is the sole authority responsible for the enforcement of the merger control rules and the review of merger control filings. However, the Federal Public Service Economy may assist the BCA with economic analyses. The BCA is an independent administrative authority consisting of the President, the Competition Pros - ecutor General, the Chief Economist and the General Counsel; together, these individuals form the BCA’s Managing Board. In addition, the BCA includes the Investigation and Prosecution Service (IPS) and the Competition College. The IPS, which is headed by the Competition Prosecutor General, conducts the inves - tigations and submits its findings to the Competition College, which is led by the President and issues a decision based on the case file. However, under the simplified merger review procedure, the IPS has the power to deliver final merger control decisions. Since 2022, a dedicated Merger Task Force (MTF) has been established within the IPS with specific respon - sibility for merger control enforcement. The MTF is composed of 20 members led by the MTF co-ordina - tor and three competition prosecutors acting as “MTF managers”.
2. Jurisdiction 2.1 Notification
Pursuant to Article IV.10 (1) of the CEL, parties must notify any concentration that exceeds the applicable jurisdictional thresholds to the BCA’s Prosecutor Gen - eral before its implementation.
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