Transposition of the ECN+ Directive and adoption of a merger filing fee

On 28 February 2022, the federal legislator adopted an act bringing about significant changes in Belgian competition law. As well as transposing the ECN+ Directive into the Belgian legal order, the act introduces, among other things, a filing fee for merger notifications.

The “ECN+ Directive” (EU Directive 2019/1) provides the national competition authorities (“NCAs”) with additional tools to apply the competition rules more effectively and to ensure the proper functioning of the internal market. In particular, the Directive aims to facilitate the work of NCAs by filling certain gaps in the enforcement system. For instance, it provides for a common “tool box” for the different NCAs, including enhanced powers of investigation and sanction, strengthens national leniency programmes and provides additional guarantees for the independence of the different NCAs.

At the Belgian level, the period of caretaker government in 2019 and 2020, as well as the current Minister’s wish to refinance the Belgian Competition Authority (“BCA”), resulted in the transposition deadline of 4 February 2021 ultimately not being met. Because of the EU Commission’s threat to launch an infringement procedure, the draft act eventually went through the parliamentary urgency procedure.

The act, which was adopted on 28 February 2022, amends Books I and IV of the Economic Law Code (“ELC”). It entails significant changes, in particular with regard to the search powers of the BCA’s Prosecutor, the modalities of the leniency procedure and the penalties for infringements. The act also grants new powers to the Markets Court and to the Finance administration as part of the reinforced cooperation between the national competition authorities. Furthermore, the Criminal Code is amended, enabling criminal immunity to be granted to persons who have participated in an infringement of competition law and who have applied to the BCA for immunity.

However, the Government went beyond the mere transposition of the ECN+ Directive and also provided for a series of additional provisions that are not without practical importance. Indeed, in addition to a number of adjustments to the procedural framework applicable to competition cases, the act also introduces a lump-sum filing fee to be paid by parties notifying a merger, amounting to EUR 17,450 for a merger subject to a simplified procedure or EUR 52,350 for other mergers. Similar lump-sum fee mechanisms already exist not only in other EU Member States (the Netherlands, Italy, Denmark) but also in the United States and Switzerland. The amounts ultimately retained by the legislator, which are determined on a flat rate basis and are not proportional to, for example, the value of the transaction envisaged, have given rise to some criticism. In particular, the Council of State pointed to the impossibility of verifying “whether there is a fair balance” between the cost of the service provided by the BCA to the notifying parties and the fees charged, which are “quite substantial”. The Government envisages laying down the arrangements for the filing fee by amending the Royal Decree of 30 August 2013 on the notification of concentrations of companies. It is expected that the fee will already be due for all formal notifications taking place after the entry into force of the act on 17 March 2022.