BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions The BCA must declare concentrations that would significantly impede effective competition in the Belgian market, or in a substantial part of it, inadmissible (Article IV.9 (4) CEL). Since its establishment as an independent competition authority in 2013, the BCA has not issued a single decision prohibiting a concentra - tion. However, in Ter Beke-Pluma N.V./Compo- frio Food Group Netherlands Holding B.V. and Imperial Meat Products VOF , the transaction was withdrawn in anticipation of such an outcome. Notified in May 2022, Ter Beke’s (now What’s Cooking?) proposed acquisition of Imperial Meat Products raised serious competition concerns in several processed meat markets. Following the opening of a Phase II investigation and two successive recommendations by the Prosecu - tor General to block the transaction due to the absence of remedies, Ter Beke withdrew its bid in June 2023. As a result, the BCA closed its review without adopting a formal prohibition decision (BCA, press release no 23/2023 of 2 June 2023). 5.2 Parties’ Ability to Negotiate Remedies The parties may propose remedies to address anti-competitive concerns raised by the BCA. Unlike the Commission, which tends to favour structural remedies, the BCA has regularly accepted and imposed both structural and behavioural remedies. Nevertheless, in an interview published in Con - currences in 2023, the BCA’s Prosecutor General said that he abides by the long-standing priority
economic progress into account, provided that this benefits the consumer, does not constitute an obstacle to competition, 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 deci - sions. For example, in Proximus/Mobile Vikings , it was held that the expected price increases were offset by the anticipated 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 arguments based on non-competition issues (Article IV.9 (2)-(4) CEL). Nevertheless, the com - petition criteria are interpreted broadly and may include considerations such as data protection and sustainability. A screening mechanism for foreign direct invest - ment has been in force in Belgium since 1 July 2023 (see 9.1 Legislation and Filing Require- ments ). 4.7 Special Consideration for Joint Ventures Full-function JVs are assessed under the sub - stantive test set out in 4.1 Substantive Test . Possible co-ordination between JV parents will be assessed under the prohibition of anti-com - petitive agreements, set out in Article IV.1 of the CEL and Article 101 of the TFEU (Article IV.9 (5) CEL).
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