BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
2.2 Primary Regulators Private M&A transactions typically do not require the involvement of a primary regulator. Public M&A transactions (such as public takeovers, IPOs, secondary offerings and bond issues) require the involvement of the Financial Services and Markets Authority (FSMA). M&A activity in certain sectors may be regulated by sector-specific regulators, for example the Belgian National Bank for transactions involv - ing financial institutions or insurance companies, the Belgian Federal Agency for the Safety of the Food Chain for transactions in the food industry, the Belgian Federal Agency for Medicines and Health Products for transactions in the health - care/pharmaceutical sector, the Belgian Institute for Postal Services and Telecommunications for the telecoms sector, etc. For more information on other regulators, see 2.3 Restrictions on Foreign Investments , 2.4 Antitrust Regulations and 2.6 National Secu- rity Review . 2.3 Restrictions on Foreign Investments Belgium’s open economy usually welcomes foreign investors and is typically considered to be one of the most flexible countries for foreign investment in Europe. However, in certain regu - lated industries (such as financial institutions and insurance, maritime ports, food, energy, pharmaceuticals, broadcasting, telecoms and postal services), a notification to, or the authori - sation of, the relevant regulator may be required. For more information on national security review of acquisition, see 2.6 National Security Review .
2.4 Antitrust Regulations National Merger Control
Provided that the business combination is not subject to EU merger control and the turno - ver thresholds in Belgium are reached, merg - ers, acquisitions and joint ventures that result in a substantial change in the control over the companies concerned must be notified to, and approved by, the Belgian Competition Authority before implementation. Business combinations are subject to Belgian merger control if they meet the following two turnover thresholds: • the undertakings concerned have a combined turnover in Belgium of more than EUR100 million; and • at least two of the undertakings concerned each have a turnover in Belgium of at least EUR40 million. Whether any involved company has its regis - tered office or owns assets in Belgium is irrel - evant. As a result, foreign-to-foreign combina - tions of companies that have substantial sales in Belgium and that do not exceed the EU thresh - olds may be subject to Belgian merger control. The approval must be obtained before the implementation of the proposed combination. So-called gun-jumping must be avoided, espe - cially in view of the fact that competition authori - ties throughout Europe have made this a focal point of attention. As a result, merger approval is typically construed as a condition precedent to closing, and no business combination may be implemented before then (which may raise questions in relation to pre-closing covenants or anti-leakage provisions, which are typically included in acquisition agreements). In addition, commercially sensitive information cannot be
227 CHAMBERS.COM
Powered by FlippingBook