BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
combined market shares (vertical relationship) is between 25% and 40%. Under the simplified procedure, the BCA must deliv - er a decision within 15 working days after receiving a complete notification. The transaction is tacitly approved if no decision is given within the time limit (Article IV.70 (6) CEL).
Horizontal mergers may give rise to two primary types of anti-competitive effects: • unilateral effects, if the transaction eliminates sig - nificant competitive constraints between the merg - ing firms or on the remaining competitors, which creates or strengthens a dominant position; • co-ordinated effects, if the transaction increases the likelihood that firms are able to co-ordinate their behaviour; or • tying or bundling of products and services in con - glomerate concentrations (portfolio effects). Non-horizontal mergers may lead to the following anti- competitive effects: • foreclosure of actual or potential rivals’ access to supplies or markets, thereby reducing these under - takings’ ability and/or incentive to compete; or • the vertically integrated undertaking may gain access to commercially sensitive information regarding the upstream or downstream activities of competitors. 4.5 Economic Efficiencies Pursuant to Article IV.9 (2) of the CEL, the BCA must take the development of technical and economic progress into account, provided that this benefits the consumer, does not constitute an obstacle to compe - tition, is merger-specific (ie, comes about as a result of the merger) and is verifiable. Parties should focus on the section of Form CONC C/C requesting evidence of efficiencies, as the BCA routinely considers these in its decisions. For exam - ple, in Proximus / Mobile Vikings , it was held that the expected price increases were offset by the antici - pated efficiency gains resulting from the elimination of marginal costs (Decision No 2021-C/C-10 of 31 May 2021, paras 395–397). 4.6 Non-Competition Issues The CEL does not allow the BCA to consider argu - ments based on non-competition issues (Article IV.9 (2)-(4) CEL). Nevertheless, the competition criteria are interpreted broadly and may include considerations such as data protection and sustainability.
4. Substance of the Review 4.1 Substantive Test
The substantive test employed by the BCA to deter - mine whether or not concentrations should be approved is whether they “significantly impede effec - tive competition in the Belgian market or a substantial part of it, in particular by creating or strengthening a dominant position” (Article IV.9 (3) CEL). 4.2 Markets Affected by a Transaction Form CONC C/C provides that markets can be: • horizontally affected, if two or more parties are active in the same product market and the concen - tration would result in a combined market share of 25% or more; or • vertically affected, when one or more parties are active in a product market that is upstream or downstream from a market in which another party is active, and when the parties’ individual or combined market share on either market is 25% or more. 4.3 Reliance on Case Law The BCA regularly relies on market definitions estab - lished in its own precedents and those of the Com - mission. It may also reference decisions by other national competition authorities (NCAs), such as those in France and Germany – as was done extensively in Ahold / Delhaize (Decision No 2016-C/C-10 of 15 March 2016). 4.4 Competition Concerns The BCA will examine horizontal and non-horizontal effects that may hinder effective competition in the Belgian market or a substantial part thereof, particu - larly by creating or strengthening a dominant position.
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