BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
on rights, agreements or other means that enable such influence, either individually or collectively and taking into account all factual and legal circumstances. This influence may result from the ownership or the right to use all or part of the undertaking’s assets, or from rights or agreements that confer decisive influence on the composition, voting or decisions of the organs of an undertaking. Control is considered to be acquired by the person or undertaking that either holds these rights or derives them from agreements or, even without formally hold - ing such rights, has the power to exercise them (Arti - cle IV.6 (3)-(4) CEL). The acquisition of a minority shareholding that results in the possibility of exercising a decisive influence on an undertaking will be caught by the merger control rules. In Picanol NV / Tessenderlo Chemie NV , the BCA found that Picanol NV acquired de facto control over Tessenderlo Chemie NV by acquiring 27.6% of the shares therein, as the remaining shares were dis - persed among a large number of shareholders (Deci - sion No 2013-C/C-01 of 21 October 2013). 2.5 Jurisdictional Thresholds The merger control provisions apply only if: • the combined turnover in Belgium of the undertak - ings concerned exceeds EUR100 million; and • at least two of them each achieve a turnover of at least EUR40 million in Belgium (Article IV.7 CEL). However, the merger control provisions do not apply to transactions that reach the European Union (EU) jurisdictional thresholds. 2.6 Calculations of Jurisdictional Thresholds Article IV.8 of the CEL provides that “turnover” refers to the amount of sales by the undertakings concerned during the last financial year. The amounts consid - ered for calculating the turnover must relate to the sale of products or services in the ordinary course of business and exclude discounts, value-added tax and other taxes directly related to the turnover.
Specific rules apply to the turnover calculation for credit institutions, other financial institutions, insur - ance undertakings and state-owned undertakings. 2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The turnover of an undertaking is the aggregate turno - ver of all companies within its group, excluding any turnover generated between these companies. How - ever, if only parts of an undertaking are acquired, the turnover of the target is limited to the turnover attribut - able to the acquired parts. Article IV.8 (4) of the CEL, which is a copy of Article 5 (4) of the EU Merger Regulation (EUMR), defines the group whose turnover must be taken into account as follows: • the undertakings concerned; • its subsidiaries and their own subsidiaries; • its parent companies and their own parent compa - nies; • its sister companies; and • the companies jointly controlled by two or more companies of the group. 2.8 Foreign-to-Foreign Transactions Foreign-to-foreign transactions are subject to the merger control rules if the turnover thresholds out - lined in 2.5 Jurisdictional Thresholds are met. The Belgian merger control regime does not define how “Belgian” turnover is to be determined. According to the EU Consolidated Jurisdictional Notice, turnover is generally attributed based on the location of the customer. However, it remains unclear whether the BCA applies the same criterion, as scholarly opinions on the matter are divided. 2.9 Market Share Jurisdictional Threshold The Belgian merger control regime has no thresholds
based on market share. 2.10 Joint Ventures
Article IV.6 (2) of the CEL provides that only full-func - tion JVs are subject to merger control (ie, those that perform all the functions of an autonomous econom - ic entity on a lasting basis). Conversely, JVs that do
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