Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Section IV.46 of the CDE requires the Prosecutor General for Competition  to inform the undertakings under investigation of the objections against them before referring the case to the President, gives them access to the material proof and the non-confidential version of the documents used to make the objections and grants them two months to submit their observations. The Prosecutor General for Co …

Proceedings before the Competition Board

Pursuant to Section IV.43 of the CDE, complaints and requests concerning anticompetitive practices are brought before the General Auditor. There is a five year limitation period as regards the subject-matter of any investigation (Section IV.91). The following may request that an inquiry be carried out: 

- interested parties bringing complaints;

- the Minister for Economic Affairs, the Minister for Small Firms and Traders (Ministre des Classes moyennes), a public body or other specific public institution charged with the control or supervision of an economic sector where they have reason to believe that an anticompetitive practice is being carried out.

The investigation of cases by the Auditorat may be ex officio or at the request of the Minister with a view to obtaining a royal decree exempting categories of agreements, decisions and concerted practices pursuant to Section IV.5 (Section IV.39).

Under the ECN+ Directive; the Act of 28 February 2022 significantly strengthens the Auditorat's investigative powers. In fact, pursuant to Section IV.40 and following, in order to carry out its tasks, the competition prosecutor general may collect all necessary information from companies, company associations and natural persons and may demand information by reasoned decision. In addition, he or she and the members of the staff of the Belgian Competition Authority commissioned by the Minister are competent to investigate infringements of this Act.

Furthermore, the prosecutor general and the members of the staff of the Belgian Competition Authority commissioned by the Minister are competent to investigate infringements of this Book and to establish those infringements by means of official reports, the factual findings of which are authentic unless proven otherwise. They are also competent to seek any useful information and to make any necessary findings. They collect all information, summon to hearings and may carry out searches commissioned by the Minister. 

In carrying out their investigation, the investigating officers may gather all information necessary to their inquiry and undertakings must communicate the information within the deadlines set out in the request. 

According to Section IV.41, investigations are carried out by the investigating officers and public servants of the Auditorat. They are empowered to collect information or documentary material, require written and oral testimony and depositions, and search the premises of an undertaking or the homes of executives and staff. They may also affix seals and make on-the-spot seizures.

The Competition Authority adopted revised guidelines relating to investigations on 17 December 2013 detailing the powers of its agents, especially regarding electronic data. They contain, inter alia, provisions regarding the right of undertakings to claim restitution of “out of scope” documents or data covered by the legal privilege.

Complaints and investigations

Section IV.46 of the CDE requires the Prosecutor General for Competition  to inform the undertakings under investigation of the objections against them before referring the case to the President, gives them access to the material proof and the non-confidential version of the documents used to make the objections and grants them two months to submit their observations. The Prosecutor General for Competition  then has two months to submit a reasoned draft decision to the President, who will select the members of the Competition Board in charge of handling the case. Simultaneously, the Prosecutor General must send a copy of the draft decision to the undertakings and give them the opportunity to consult the whole file. Complainants on the other hand do not have this right unless the President decides otherwise. The undertakings have a month to submit their written observations. 

Within a delay of two weeks to two months after the closure of this written phase, the Board must hold hearings. The Board has then one month to make its final decision.

The 2013 Act introduced a settlement procedure into Belgian law which is available for any breach of the competition rules (Sections IV.55 et seq.). At any time of the proceedings but before the General Auditor submits its draft decision to the President, a deadline may be offered to the undertaking to make a written statement under which it agrees to discuss a settlement of the case. To benefit from a reduction of 10% of the fine, the undertaking must acknowledge the infringement and agree not to appeal the decision. 

The 2022 Act also enacted into national law the ECN + Directive requirements regarding the strengthening of the cooperation between national competition authorities (Section IV.76 and following) in order to streamline competition law enforcement. 

In order to faster competition law enforcement, the ECN+ Directive allows NCA's to impose behavioral or strutural remedies. The 2022 Act implemented those powers at Section IV.52. 

Pursuant to Section IV.72 CDE, the complainant, the Competition prosecutor general, the Minister for Economic Affairs or the minister with responsibility for the sector concerned may submit an application for interim measures to the President in order to have the restrictive practice under investigation suspended.

However, since the Royal Decree of 2023, requests for interim measures will only be considered after the Competition prosecutor general initiates an investigation. Consequently, simultaneous submission of such requests with a complaint is no longer possible.

In order to speed up the procedure, the procedure is handled by the Competition College only and the schedules have been tightened. Thus, hearings must take place within one month of claims and the Competition Board must in turn make its decision within one month of hearings. If no decision is made within one month, the claim for interim measures is deemed to be rejected (Section IV.73).

Interim relief

The courts may declare that agreements prohibited under the Act are void, and make findings regarding abuse of a dominant position. In application of Section IV.89 “Any judgment or ruling given by the courts or tribunals relating to cases concerning the legitimate nature of a competition practice within the meaning of this book shall be notified to the Belgian Competition Authority and, if the judgment or ruling concerns the application of European competition law, to the European Commission within eight days at the request of the registrar of the competent court”.

Where the outcome of the litigation depends on the interpretation of the provisions of the Code de droit economique, the court hearing the case may stay the proceedings and refer a question to the Court of Cassation for a preliminary ruling. The court having referred the question and any other court called upon to rule on the same case must comply with the ruling given by the Court of Cassation (Sections IV.87 et seq.).

On 6 June 2017, the Parliament adopted an act transposing EU Directive No 2014/104 on damages actions for competition law infringements into national law. The act establishes a new Title 3 in Book XVII of the “Code de droit économique”. Under Section XVII.72, any natural or legal person suffering from harm caused by an infringement of competition law may claim full compensation for that damage. Section XVII.73 establishes a rebuttable presumption that cartels cause harm. The next sections of the Code relate to the disclosure of evidence. Pursuant to Section XVII.74, any party who has submitted reasoned grounds containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages, may request the national court to order the defendant or a third party to disclose relevant evidence which lies in their control. In this respect, the court must limit the disclosure of evidence to that which is proportionate but this does not rule out the communication of confidential information insofar as measures are taken to ensure the protection of such information. As regards information contained in the Competition Authority's file, Section XVII.77 provides that it may only be disclosed where no party or third party is reasonably able to provide that evidence. The court may order the disclosure of the following categories of evidence only after the Competition Authority, by adopting a decision or otherwise, has closed its proceedings: i) information that was prepared by a natural or legal person specifically for the Competition Authority proceedings; ii) information that the Competition Authority has drawn up and sent to the parties in the course of its proceedings; and iii) settlement submissions that have been withdrawn. The court may not at any time order a party or a third party to disclose leniency statements or settlement submissions. In addition, under Section XVII.82, an infringement of competition rules found by a final decision of the Competition Authority or by the Brussels Court of Appeal is deemed to be irrefutably established for the purposes of an action for damages. The same decision by the competition authority of another Member State may constitue at least prima facie evidence of the breach and may be assessed along with any other evidence adduced by the parties. Section XVII.83 states that the defendant may invoke as a defense against a claim for damages the fact that the claimant passed on the whole or part of the overcharge resulting from the infringement of competition law. The burden of proving that the overcharge was passed on is on the defendant, who may reasonably require disclosure from the claimant or from third parties. Where the existence of a claim for damages or the amount of compensation to be awarded depends on whether, or to what degree, an overcharge was passed on to the claimant, the burden of proving the existence and scope of such a passing-on rests with the claimant. However, where the claimant is an indirect purchaser, Section XVII.84 establishes a rebuttable presumption that a passing-on to him/her occurred where he/she has shown that: i) the defendant has committed an infringement of competition law; ii) the infringement of competition law has resulted in an overcharge for the direct purchaser of the defendant; and iii) he/she has purchased the goods or services that were the object of the infringement of competition law, or has purchased goods or services derived from or containing them. Furthermore, Section XVII.86 lays down a rule of joint and several liability for undertakings or associations of undertalkings which have infringed competition law through joint behavior. However, SMEs and leniency recipients may under certains conditions benefit from derogatory rules which allow them to limit their contribution to the harm caused to their direct or indirect purchasers. Finally, under Section XVII.70, the new provisions also apply to class actions.  

Global Competition Law

43. Proceedings before the Competition Board

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Les notions juridiques connexes

43. Proceedings before the Competition Board

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

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