BELGIUM Law and Practice Contributed by: Peter L’Ecluse, Koen T’Syen and Amirsalar Kavoosi, Van Bael & Bellis
5.4 Negotiating Remedies With Authorities
given to structural remedies at EU level, but that this “doesn’t mean that behavioural or access remedies should be excluded per se; they make sense in certain cases, when their workabil - ity is backed by market realities/feedback, as was the case in the DPG/Rossel/RTL Belgium transaction” (see Damien Gerard, Isabel Rooms, ‘Damien Gerard (Belgian Competition Authority): For a rigorous and effective competition policy anchored in market realities’, Concurrences 2023, No 3, Art No 113384). Examples of structural remedies from the BCA’s practice include divestitures (eg, Kinepolis/ Utopolis , Decision No 2016-I/O-12) and grant - ing access to essential infrastructure on fair, rea - sonable and non-discriminatory (FRAND) terms (eg, Telenet/De Vijver Media , Decision No 2019- C/C-16). An example of a behavioural remedy is the prohibition on bundling several services or products in conglomerate mergers (eg, Bpost/ APM , Decision No 2016-C/C-32). 5.3 Legal Standard The Markets Court (Brussels Court of Appeal) held that: “Remedies must be complete, effec - tive and verifiable. This means they fully and effectively remove the serious doubts about the significant impediment to competition, and thus the competition concerns, and that this can be verified” (free translation of citation taken from judgment of 11 March 2015, VAB, VAB and Rijschool Sanderus v BMA , point 77). In other words, remedies must eliminate any serious doubts about a significant impediment to competition in a manner that is complete, effective and verifiable.
According to Article IV.66 (2) of the CEL, the BCA may only impose remedies in its decision if those remedies have been offered by the parties. This means that the authorities cannot unilaterally impose remedies that have not been agreed upon. Remedies can be offered as early as during the informal pre-notification discussions. 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 usually set in accordance with the principles of the Commission’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 decision specifies that non-compli - ance with a condition renders the concentra - tion 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 publish 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 prohibited any foreign-to-foreign transactions.
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