BELGIUM Law and Practice Contributed by: Steven De Schrijver and Carl Dotremont, Allegiance Law
7.5 Antitrust Regulations The relevant legislation governing merger control in Belgium is found in Book IV of the Code of Eco- nomic Law, the Royal Decree of 30 August 2013 on the notification of concentrations, and the EU Merger Regulation. The scope of legislation covers mergers where independent undertakings merge, acquire con- trol over another undertaking or form full-function joint ventures. The definition of “control” is broad, including the acquisition of minority shareholdings. The jurisdictional thresholds for notification require an aggregate Belgian turnover exceeding EUR100 mil- lion and individual turnovers of at least EUR40 million for at least two of the parties. The Belgian Competi- tion Authority may investigate non-notifiable mergers if they potentially constitute an abuse of a dominant position. Book IV of the Code of Economic Law does not apply to concentrations falling under the EU Merg- er Regulation, except for specified cases. Mandatory filing is required for concentrations that surpass the turnover thresholds. Notification of concentrations must be submitted to the Competition Prosecutor General before the transaction is finalised, with no exceptions to this rule. 7.6 Labour Law Regulations Acquirers should primarily be cautious about the fol- In the event of an asset deal, whether through a trans- fer ut singuli or a transfer under a Belgian Code on Companies and Associations procedure, meeting the criteria for a transfer of undertaking – as defined by Collective Bargaining Agreement (CBA) No 32bis – triggers the obligation to inform and engage employ- ees. In a share sale The duty to inform and consult employees, among other responsibilities, materialises when a share trans- fer results in a concentration or implies a significant structural change under negotiation by the company. Concentration is recognised when a transfer of shares confers control upon the buyer over a formerly auton- lowing topics in an M&A transaction. Approval or Information/Consultation Requirements In an asset sale
omous company, triggering the obligation for both the acquiring entity (buyer) and the target company (sub- ject to control acquisition) to inform and consult. Parties to be informed The determination of who should be informed and/or consulted hinges on the presence of employee rep- resentation bodies within the company in question. At the national level, the key employee representa- tion bodies include the Works Council ( Onderne- mingsraad/Conseil d’entreprise ), the trade union del- egation ( syndicale afvaardiging/délégation syndicale ) and the Committee for Prevention and Protection at Work ( Comité voor Preventie en Bescherming op het Werk / Comité pour la Prévention et la Protection au Travail ). In the absence of a Works Council, social dia- logue occurs at the level of the trade union delegation. If neither of these bodies exists within the company, the Committee for Prevention and Protection at Work becomes the designated employee representation body that must be informed and consulted regarding the transaction. If, however, there are no employee representation bodies at the company (or companies) in question, the obligation to inform and consult indi- vidual employees about the (contemplated) transac- tion does not apply unless the transaction qualifies as a transfer of undertaking within the meaning of CBA No 32bis. Timing and procedure in an asset and share sale Employees have the right to be informed, obliging employers to share transaction details for employees to understand the company’s socio-economic context. Timing-wise, employee representative bodies should receive information before any public announcement of a concrete proposal for a transaction decision – typically just before finalising the acquisition agree- ment. Regardless, the information provision and con- sultation process must be concluded before the final decision on the transaction. Consultation aims to foster dialogue between employ- ee representatives and the employer concerning the transaction, sparking debate on whether this duty applies only to employment-impacting transactions.
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