BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
• if there is no doubt on the admissibility of the concentration and when the combined market share (horizontal relationship) or the individual or combined market shares (vertical relationship) is between 25% and 40%. Under the simplified procedure, the BCA must deliver a decision within 15 working days after receiving a complete notification. The transac - tion is tacitly approved if no decision is given within the time limit (Article IV.70 (6) CEL). The substantive test employed by the BCA to determine whether or not concentrations should be approved is whether they “significantly impede effective 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 concentration would result in a combined market share of 25% or more; or 4. Substance of the Review 4.1 Substantive Test • vertically affected, where one or more par - ties are active in a product market that is upstream or downstream from a market in which another party is active, and where 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 established in its own precedents and those of the Commission. 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-hori - zontal effects that may hinder effective competi - tion in the Belgian market or a substantial part thereof, particularly by creating or strengthening a dominant position. Horizontal mergers may give rise to two primary types of anti-competitive effects: • unilateral effects, if the transaction eliminates significant competitive constraints between the merging firms or on the remaining com - petitors, which creates or strengthens a dominant position; or • co-ordinated effects, if the transaction increases the likelihood that firms are able to co-ordinate their behaviour. Non-horizontal mergers may lead to the follow - ing anti-competitive effects: • foreclosure of actual or potential rivals’ access to supplies or markets, thereby reduc - ing these undertakings’ ability and/or incen - tive to compete; • the vertically integrated undertaking may gain access to commercially sensitive information regarding the upstream or downstream activi - ties of competitors; or • tying or bundling of products and services in conglomerate concentrations (portfolio effects). 4.5 Economic Efficiencies Pursuant to Article IV.9 (2) of the CEL, the BCA must take the development of technical and
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