BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
2.7 Businesses/Corporate Entities Relevant for the Calculation of Jurisdictional Thresholds The turnover of an undertaking is the aggre - gate turnover of all companies within its group, excluding any turnover generated between these companies. However, if only parts of an undertaking are acquired, the turnover of the target is limited to the turnover attributable 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 companies; • 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 thresh - olds outlined in 2.5 Jurisdictional Thresholds are met. The Belgian merger control regime does not define how “Belgian” turnover is to be deter - mined. According to the EU Consolidated Juris - dictional 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 mat - ter 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- function JVs are subject to merger control (ie, those that perform all the functions of an autono - mous economic entity on a lasting basis). Con - versely, JVs that do not meet the full-function criteria are assessed under the rules prohibiting anti-competitive agreements, as set out in Article IV.1 of the CEL and Article 101 of the Treaty on the Functioning of the European Union (TFEU). Special rules apply when determining whether JVs meet the thresholds. In particular, Article IV.8 (4) of the CEL stipulates that the turnover gener - ated by a JV must be divided equally between the two undertakings concerned. 2.11 Power of Authorities to Investigate a Transaction The BCA has no power to “call in” a transaction for scrutiny under the merger control framework if the transaction does not meet the turnover thresholds set out in Article IV.7 (1) of the CEL. However, in wake of the Towercast judgment of the European Court of Justice, the BCA has used antitrust rules to review transactions that do not meet the notification thresholds. On 22 March 2023, the BCA launched an investi - gation into Proximus’s acquisition of EDPnet and imposed interim measures prohibiting Proximus from completing the transaction pending the outcome of the inquiry. The investigation was based on the abuse of dominance provisions set out in Article IV.2 of the CEL and Article 102 of the TFEU. On 6 November 2023, the BCA closed its investigation following Proximus’s decision to divest EDPnet and sell it to Citymesh (BCA, press release no 51/2023 of 6 November 2023). On 21 January 2025, the BCA opened an inves - tigation into the acquisition of the artisanal bak -
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