BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
7. Third-Party Rights, Confidentiality and Cross-Border Co-Operation 7.1 Third-Party Rights Third parties with a sufficient interest have the right to be heard and to provide information to the BCA dur - ing the non-simplified procedure (Articles IV.65 (2)-(4) CEL); they also have the right to be notified of the BCA’s final decision (Article IV.74 (1) CEL). Finally, if they have formally requested to be heard during the procedure, they have the right to appeal the BCA’s decision before the Markets Court (Article IV.90 (4) CEL). 7.2 Contacting Third Parties As part of its review process, the BCA will almost always gather the views of third parties on a proposed concentration. It will use requests for information or will meet with these parties. The BCA will also take into account the views of third parties in assessing whether the proposed remedies address its competition concerns. 7.3 Confidentiality Article 75 (2) of the CEL stipulates that the BCA’s publicly published decisions must not disclose the undertakings’ business secrets or other confidential information. However, in Ter Beke - Pluma N . V ./ Compofrio Food Group Netherlands Holding B . V . and Imperial Meat Products VOF (see also 5.1 Authorities’ Ability to Pro- hibit or Interfere With Transactions ), the BCA agreed to lift the confidentiality of data submitted by third- party market participants in response to its requests for information during a Phase II investigation. The notifying party, Ter Beke, sought access to confidential quantitative data provided by supermarkets in order to conduct its own analysis and effectively exercise its rights of defence. To address the BCA’s confidentiality concerns, Ter Beke requested the creation of a data room. On 4 January 2023, the competition prosecutor granted the request, lifting confidentiality vis-à-vis Ter Beke for each supermarket concerned, with access to the documents granted through a designated data room, subject to specific rules and conditions (BCA, press release of 29 June 2023, “The Belgian Competi -
Parties usually use the Commission’s “Form RM”, annexed to the Implementing Regulation 2023/914, when proposing commitments. 5.5 Conditions and Timing for Divestitures The conditions and timing for divestitures are usu - ally set in accordance with the principles of the Com - mission’s 2008 Remedies Notice. Accordingly, and consistent with that Notice, the transaction is usually completed after the BCA has issued its decision on the concentration. If the commitments are not fully complied with, the parties risk incurring a fine of up to 10% of their annual turnover. Moreover, if the BCA’s Phase II deci - sion specifies that non-compliance with a condition renders the concentration impermissible, any breach of that condition automatically nullifies the approval decision. 5.6 Issuance of Decisions The BCA will notify its decision to the parties and pub - lish a non-confidential version on its website. 5.7 Prohibitions and Remedies for Foreign-to- Foreign Transactions The BCA has not recently imposed remedies nor pro - hibited any foreign-to-foreign transactions. 6. Ancillary Restraints and Related Transactions 6.1 Clearance Decisions and Separate Notifications The BCA applies the Commission’s Notice on Ancillary Restraints. Therefore, the BCA’s clearance decisions are deemed to cover “restrictions directly related and necessary to the implementation of the concentra - tion”. Restrictions that do not fall under this definition of ancillary restraints are reviewed under Article IV.1 of the CEL and Article 101 of the TFEU.
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