BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
2.3 Restrictions on Foreign Investments Belgium’s open economy usually welcomes foreign investors and is typically considered to be one of the most flexible countries for foreign investment in Europe. However, in certain regulated industries (such as financial institutions and insurance, maritime ports, food, energy, pharmaceuticals, broadcasting, telecoms and postal services), a notification to, or the authorisation of, the relevant regulator may be required. For more information on national security review of acquisition, see 2.6 National Security Review . 2.4 Antitrust Regulations National Merger Control Provided that the business combination is not subject to EU merger control and the turnover thresholds in Belgium are reached, mergers, acquisitions and joint ventures that result in a substantial change in the con - trol over the companies concerned must be notified to, and approved by, the Belgian Competition Author - ity before implementation. Business combinations are subject to Belgian merger control if they meet the following two turnover thresh - olds: • the undertakings concerned have a combined turnover in Belgium of more than EUR100 million; and • at least two of the undertakings concerned each have a turnover in Belgium of at least EUR40 mil - lion. Whether any involved company has its registered office or owns assets in Belgium is irrelevant. As a result, foreign-to-foreign combinations of companies that have substantial sales in Belgium and that do not exceed the EU thresholds may be subject to Belgian merger control. The approval must be obtained before the implemen - tation of the proposed combination. So-called gun- jumping must be avoided, especially in view of the fact that competition authorities throughout Europe have made this a focal point of attention. As a result, merger approval is typically construed as a condition prece -
dent to closing, and no business combination may be implemented before then (which may raise questions in relation to pre-closing covenants or anti-leakage provisions, which are typically included in acquisition agreements). In addition, commercially sensitive infor - mation cannot be shared during negotiations or the due diligence process, unless sufficient non-disclo - sure and/or “clean team” arrangements are in place. Upon notification, the Belgian Competition Authority will assess whether the transaction could significantly impede effective competition in the relevant market. This may be the case when the proposed concentra - tion could create or strengthen a dominant position in the market for the company involved. The notification to, and approval by, the Belgian Com - petition Authority is subject to a payment by the noti - fier of a flat fee of EUR52,350 for an ordinary merger filing procedure and EUR17,450 for a simplified merg - er filing procedure. These amounts are increased by the consumer price index applicable on the month of notification. The consumer price index is published monthly by the Belgian Statistics Office, Statbel. EU Merger Control Transactions between companies active on an EU or worldwide scale are likely to meet the European turno - ver thresholds. In that case, the parties must notify the proposed concentration to, and obtain approval from, the European Commission, which is exclusively competent to deal with concentrations with an EU dimension. The employer must inform (and under certain cir - cumstances also consult) the works council or, in its absence, the trade union delegation or, in its absence, the committee for prevention and protection at work, prior to any publication of the decision regarding a merger, demerger, transfer or acquisition of all shares in the company or its assets. In the absence of an employee representative body, the employees should be directly informed about most transactions (for example a merger or demerger). In the case of a transfer of a minority of shares, an information obliga - tion may apply towards the employee representative body if that decision has an important impact on the 2.5 Labour Law Regulations Information and Consultation
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