Law On The Integration Of Book Iv 'protection Of Competition' And Book V 'competition And Price Developments' In The Code Of Law Economic And On Insertion Of Book Iv And Book V Definitions And Provisions For The App

Original Language Title: Loi portant insertion du livre IV « Protection de la concurrence » et du livre V « La concurrence et les évolutions de prix » dans le Code de droit économique et portant insertion des définitions propres au livre IV et au livre V et des dispositions d'app

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belgiquelex.be - Carrefour Bank of Legislation

3 AVRIL 2013. - An Act to include Book IV "Protection of Competition" and Book V "Competition and Price Evolution" in the Economic Law Code and to incorporate the definitions specific to Book IV and Book V and the provisions of the law specific to Book IV and Book V, in Book Ier Economic Law Code (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER 1er. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER 2. - The Economic Law Code
Art. 2. In book IerTitle 2, of the Economic Law Code, reads as follows:
"Chapter 2. - Specific definition of book IV
Art. I.6. The following definition is applicable to Book IV:
- dominant position: the position that allows a company to impede the maintenance of effective competition by providing it with the possibility of independent behaviour to a significant extent vis-à-vis its competitors, customers or suppliers. »
Art. 3. In book IerTitle 2, of the Economic Law Code, reads as follows:
"Chapter 3. - Specific definitions of Book V.
Art. I.7. The following definition is applicable to Book V:
- observatory of prices: the institution responsible for establishing the observations and analyses referred to in section 108, i), of the Act of 21 December 1994 on social and other provisions. »
Art. 4. In the same Code, a Book IV is inserted:
"LIVRE IV. - Protection of competition
PART 1er. - Competition rules
CHAPTER 1er. - Restrictive competition practices
Art. IV.1. § 1er. It is prohibited, without a prior decision to this effect, any agreements between companies, any decisions of associations of companies and any agreed practices that have the purpose or effect of preventing, restricting or misleading competition in the relevant Belgian market or in a substantial part of it, and in particular those that consist of:
1° direct or indirect fixing purchase or sale prices or other transaction conditions;
2° limiting or controlling production, opportunities, technical development or investment;
3° distribute procurement or supply sources;
4° apply, in respect of commercial partners, unequal conditions to equivalent benefits by influencing them as a result a disadvantage in competition;
5° subordinating the conclusion of contracts to the acceptance by partners of additional benefits that, by their nature or according to commercial uses, do not relate to the purpose of these contracts.
§ 2. Agreements or decisions prohibited under this article shall be null and void in full law.
§ 3. However, the provisions of paragraph 1er does not apply:
1° to any agreement or class of agreements between companies,
2° to any decision or class of decisions of business associations, and
3° to any concerted practice or class of agreed practices that contribute to improving production or distribution or to promoting technical or economic progress or that allow small and medium-sized enterprises to tighten their competitive position in the relevant market or in the international market, while at the same time providing users with a fair share of the profit resulting from it and without:
(a) impose restrictions on interested companies that are not essential to achieving these objectives;
(b) give these companies the opportunity, for a substantial part of the products involved, to eliminate competition.
§ 4. Individuals are not allowed to negotiate on behalf of and on behalf of a company or association of companies with competitors or to agree with them:
(a) fix prices for the sale of goods or services to third parties;
(b) limit the production or sale of goods or services;
(c) awarding contracts.
Art. IV.2. It is forbidden, without a prior decision to this effect, the fact for one or more companies to misuse a dominant position in the relevant Belgian market or in a substantial part of it.
These abusive practices may include:
1° direct or indirect imposition of purchase or sale prices or other non-equitable transaction conditions;
2° limiting production, opportunities or technical development to consumer harm;
3° apply unequal conditions to equivalent benefits to trading partners, thereby causing them a disadvantage in competition;
4° subordinating the conclusion of contracts to the acceptance by partners of additional benefits, which by their nature or according to commercial uses, have no connection with the purpose of these contracts.
Art. IV.3. The practices referred to in Article IV.1, § 1erand Article IV.2 are described below as restrictive competition practices.
Art. IV.4. Prohibition of Article IV.1, § 1er, does not apply to agreements, decisions of cooperative associations and practices for which Article 101, § 3, of the TFEU was declared to be implemented by a regulation of the Council of the European Communities or a regulation or decision of the European Commission.
Prohibition of Article IV.1, § 1er, does not apply to agreements, decisions of joint venture associations and practices that do not affect trade between Member States or that do not restrict, prevent or distort competition in the common market and that would have benefited from the protection of a regulation referred to in paragraph 1er, in the event that they have affected this trade or restricted, prevented or distorted this competition.
Prohibition of Article IV.1, § 1er, does not apply to categories of agreements, decisions of associations of companies and concerted practices that fall within the scope of a royal order made under section IV.5.
Art. IV.5. § 1er. The King may, after consultation with the Competition Commission referred to in Article IV.39 and the Belgian Competition Authority, declare by order that Article IV.1, § 1er, is not applicable to categories of agreed agreements, decisions and practices.
The decision is motivated. It is deliberated in the Council of Ministers when it departs from the opinion or application of the Belgian Competition Authority.
§ 2. The Royal Decree includes a definition of the categories of agreements, decisions and concerted practices to which it applies, including:
1° restrictions or clauses that cannot be included in this;
2° the clauses to be included or the other conditions to be fulfilled.
This royal decree is taken for a limited period of time. It may be repealed or amended where the circumstances have changed in respect of an element that has been essential to stop it; in this case, transitional measures for the agreed agreements, decisions and practices referred to in the previous order are planned.
CHAPTER 2. - Concentrations
Art. IV.6. § 1er. For the purposes of this book, a concentration is achieved when a sustainable change in control results in:
1° the merger of two or more previously independent companies or parts of such enterprises; or
2° of the acquisition, by one or more persons already holding control of a business at least or by one or more companies, of the direct or indirect control of the whole or parts of one or more other companies, whether by taking capital stakes or purchasing assets, contract or any other means.
§ 2. The establishment of a joint enterprise that carries out all functions of an autonomous economic entity in a sustainable manner constitutes a concentration operation within the meaning of paragraph 1.erTwo.
§ 3. For the purposes of this book, control arises from rights, contracts or other means that confer on or alone and in the light of the circumstances of fact or law, the ability to exert a decisive influence on the activity of a company, including:
1° of ownership or enjoyment of all or part of the property of a business;
2° of rights or contracts that give a decisive influence on the composition, deliberations or decisions of the organs of a company.
§ 4. The control is acquired by the person or business who:
1° shall hold such rights or beneficiaries of such contracts; or
2° having no rights or beneficiaries of these contracts, have the power to exercise the rights arising therefrom.
§ 5. A concentration operation within the meaning of paragraph 1er is not realized:
1° where credit institutions, other financial institutions or insurance companies, whose normal activity includes the transaction and the negotiation of financial instruments on their own account or on behalf of others, hold, on a temporary basis, the participations they have acquired in a company for the purpose of resale, provided that they do not exceed the voting rights attached to these competitive interests
2° where control is acquired by a judicial or public representative, by virtue of a judicial decision or other procedure of forced liquidation;
3° where the operations referred to in paragraph 1er, 2°, are carried out by financial participation companies referred to in Article 5, 3, of the Fourth Council Directive 78/660/EEC of 25 July 1978, based on Article 54, paragraph 3, item (g), of the Treaty and concerning the annual accounts of certain forms of companies, subject to the restrictions, however, that the voting rights attached to the holdings are exercised indirectly, including through the appointment of members of the executive and supervisory bodies
Art. IV.7. § 1er. The provisions of this chapter apply only when the companies concerned aggregate together in Belgium a turnover, determined according to the criteria set out in Article IV.8, of more than 100 million euros, and that at least two of the companies concerned each make a turnover of at least 40 million euros in Belgium.
§ 2. The King may, by order deliberately in the Council of Ministers, and after consultation with the Belgian Competition Authority and the Competition Commission, referred to in Article IV.39, increase the thresholds referred to in paragraph 1er.
§ 3. Every three years, the Belgian Competition Authority conducts an assessment of the thresholds referred to in paragraph 1er, taking into account, inter alia, the economic impact and administrative burden on businesses.
Art. IV.8. § 1er. The turnover referred to in Article IV.7 is the total turnover realized during the previous fiscal year in Belgium. It agrees within the meaning of the Corporate Code, Book IV, Title VI on consolidated annual accounts of companies.
§ 2. Derogation from paragraph 1er, where a concentration consists of the acquisition of parties - whether or not holders of moral pesonality - of one or more companies or of a group of companies, only the turnover related to the parties thus the subject of the transaction is taken into account in the head of the assignor(s).
However, two or more transactions referred to in paragraph 1er, which take place in a period of two years between the same persons or companies, are to be considered as a single concentration transaction occurring on the date of the last transaction.
§ 3. The turnover is replaced:
1° for credit institutions and other financial institutions, by the sum of the following items, described in the Royal Decree of 23 September 1992, on the annual accounts of the credit establishment, deducted, if any, from the value added tax and other taxes directly related to the said products:
(a) interests and similar products;
(b) securities income:
- income of shares, shares and other variable income securities;
- interest income;
- share income in related businesses;
(c) perceived commissions;
(d) net earnings from financial transactions;
(e) other operating products.
The turnover of a credit or financial institution in Belgium includes the products, defined above, the branch or division of the said establishment, established in Belgium.
2° for insurance companies, by the value of the gross premiums issued that include all amounts received and receivable under insurance contracts established by them or on their behalf, including premiums donated to reinsurers and after deduction of taxes or parafiscale taxes collected on the basis of the amount of premiums or the total volume of the premium. Gross premiums paid by residents in Belgium are taken into account.
§ 4. With respect to the application of Article IV.7, and without prejudice to paragraph 2, the turnover of each enterprise is the result of the sum of the business figures of all enterprises belonging to the same group.
The companies within the meaning of the Corporate Code, Book IV, Title VI, are considered to belong to the same group on consolidated annual accounts.
§ 5. For public enterprises referred to in Article IV.12, the turnover to be taken into account is that of all enterprises that constitute an economic package with an autonomous decision-making power, regardless of the detention of their capital or the administrative guardianship rules applicable to them.
Art. IV.9. § 1er. Concentration operations are subject to prior approval by the Belgian Competition Authority, which determines whether they are or are not eligible.
§ 2. To make the decision referred to in paragraph 1er, it shall be taken into account:
1° the need to preserve and develop effective competition in the national market, particularly in view of the structure of all the markets involved and the actual or potential competition of companies located inside or outside Belgium;
2° the position on the market of the companies concerned and their economic and financial power, the possibilities of choice of suppliers and users, their access to the sources of supply or the opportunities, the existence of legal or factual intrusion to the market, the evolution of the supply and demand of the products and services concerned, the interests of the intermediate and end consumers as well as the evolution of the technical progress
§ 3. Concentration operations that do not significantly interfere with effective competition in or a substantial part of the Belgian market, including by creating or strengthening a dominant position, are declared eligible.
§ 4. Concentration operations that result in significantly impeding effective competition in the Belgian market or a substantial part of the market, including by creating or strengthening a dominant position, are declared inadmissible.
§ 5. As long as the establishment of a joint venture, which is a concentration operation within the meaning of Article IV.6, §2, is or is the result of the coordination of the competitive behaviour of companies that remain independent, such coordination shall be assessed according to the criteria of Article IV.1, to determine whether or not the operation is eligible.
In this assessment, it shall be taken into account, inter alia:
1° of the significant and simultaneous presence of two or more founding companies in the same market as that of the joint venture, on a market located upstream or downstream of this market or on a market closely linked to that market;
2° of the possibility given to the companies concerned by their coordination directly resulting from the creation of the joint venture to eliminate competition for a substantial part of the products and services involved.
Art. IV.10. § 1er. The concentrations referred to in this book are notified to the Auditor General of the Belgian Autorité de la concurrence prior to their completion and after the conclusion of the agreement, the publication of the offer of purchase or exchange, or the acquisition of control participation. However, the parties may notify a draft agreement, provided they explicitly state that they intend to conclude an agreement that does not differ significantly from the notified project with respect to all relevant points of competition law. In the case of a public procurement or exchange offer, parties may also notify a project when they have publicly announced their intention to make such an offer.
§ 2. Concentrations that consist of a fusion within the meaning of Article IV.6, § 1er, 1°, or in the acquisition of common control within the meaning of Article IV.6, § 1er, 2°, are notified jointly by the parties to the merger or acquisition of the joint control. In any other case, the notification is submitted by the person or company that acquires control of the whole or part of one or more companies.
§ 3. A concentration is notified in Dutch or French, with the choice of notifying parties.
§ 4. The modalities of notification referred to in paragraph 1er are fixed by the King. The Belgian Competition Authority may set the specific rules for a simplified notification.
§ 5. As long as the College of Competition has not made a decision on the eligibility of the concentration, the companies concerned cannot implement the concentration.
§ 6. However, paragraph 5 does not hinder the realization of a public offer of purchase or exchange or transactions by which control within the meaning of Article IV.6 is acquired through several vendors through a series of transactions on financial instruments, including those that are convertible into other financial instruments, admitted to being negotiated on a market such as a stock exchange, to the extent that:
1° that the concentration shall be notified promptly to the Auditor General in accordance with this article, and
2° that the purchaser does not exercise the voting rights attached to the financial instruments concerned or exercises them only in order to safeguard the full value of his investment and on the basis of an exemption granted by the President of the Belgian Autorité de la concurrence in accordance with paragraph 7.
§ 7. Without prejudice to the provisions of paragraph 6, the President may, at any time, at the request of the parties, grant an exemption from the obligation set out in paragraph 5. In this case, the Chair requests that the auditor file, within two weeks of the filing of the application, a report specifying the elements of appreciation required for the decision making referred to in that paragraph.
§ 8. The President may make a decision on terms and charges.
Art. IV.11. Concentrations that are subject to the control of the European Commission, including those that are referred to it under Article 22 of Regulation (EC) No 139/2004 of the Council of the European Union, of 20 January 2004, concerning the control of concentrations between companies, are not subject to the control established by this book.
Nevertheless, the limits referred to the Belgian Autorité de la concurrence by the European Commission pursuant to Articles 4, paragraphs 4 and 5, and 9, first paragraph, of Regulation (EC) No 139/2004 of the Council of the European Union, of 20 January 2004, concerning the control of the concentrations between companies are subject to control. In these cases, the parties re-report the concentration to the Auditor General in accordance with Article IV.10.
CHAPTER 3. - Public enterprises
Art. IV.12. Public enterprises and enterprises to which public authorities grant special or exclusive rights are subject to the provisions of this book insofar as this application fails, in law or in fact, to the particular mission which has been assigned to them by or under the law.
CHAPTER 4. - Measures or decisions of a foreign State
Art. IV.13. Except as an exemption in the cases established by the King, it is prohibited for any person residing in or in the territory of Belgium to follow up on the measures or decisions of a foreign State or of organizations within the territory of Belgium relating to competition, economic power or restrictive business practices in the field of international maritime and air transport.
The King determines the acts covered by this prohibition provision.
The exemption may, at the request of the interested parties, be granted by the Minister with the economy in his or her powers and, where applicable, be subject to specified terms.
Art. IV.14. Any injunction or request based on the measures or decisions referred to in section IV.13 shall be communicated, within fifteen days, to the Minister or his or her delegate.
Art. IV.15. Without prejudice to Articles IV.13 and IV.14 and except for the exceptions it determines, the King may, by order deliberately in the Council of Ministers, and after consultation with the Belgian Competition Authority and the Competition Commission, take measures to prohibit companies from giving information or documents that have not been published and relating to their competition practices to a foreign State or to an organization within the Belgian Competition Authority.
PART 2. - Application of competition law
CHAPTER 1er. - The Belgian Autorité de la concurrence
Section 1re. - Organization
Article IV.16. § 1er. It is created an autonomous service with legal personality, called the Belgian Competition Authority.
§ 2. The Belgian Autorité de la concurrence is composed of:
1st of the president and the service of the president;
2° of the College of Competition;
3° of the Steering Committee;
4° of the auditorship, under the direction of the general auditor.
§ 3. The Belgian Autorité de la concurrence is competent for the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union, referred to in Article 35 of Regulation (EC) No 1/2003 of the Council of 16 December 2002 concerning the implementation of the competition rules set out in Articles 101 and 102 of the Treaty on the Functioning of the European Union (hereinafter TFEU).
§ 4. The King deliberately determines in Council of Ministers what human, logistical and material means the Federal Public Service Economics, P.M.E., Average Classes and Energy, makes available to the Belgian Authority of Competition. To this end, a service delivery contract will be concluded between the Belgian Autorité de la concurrence and the SPF Economie.
§ 5. The King, by order deliberately in the Council of Ministers, determines the administrative and financial status of the President, the Vice President and assessors who sit at the College of Competition, the Auditor General, the Director of Legal Studies, the Director of Economic Studies and the staff of the Belgian Competition Authority.
Sub-section 1re. - The President and the Office of the President
Art. IV.17 § 1er. The President of the Belgian Autorité de la concurrence (hereinafter "the President") is appointed by the King, by order deliberately in the Council of Ministers, for a term of six years renewable once.
The President shall carry out the tasks conferred by this book, and in particular section 2 of this chapter. For this purpose, he may delegate certain missions to the Vice-President assailant for the tasks of the College of Competition and, where this concerns other tasks, the Director of Economic Studies, the Director of Legal Studies and the staff of the Belgian Competition Authority.
§ 2. In order to be appointed president the candidate has passed the professional fitness examination to assess the maturity and capacity required for the performance of the function concerned, whose terms and program are fixed by the King. It also provides proof of useful experience for the exercise of the function. He must have a master's degree and justify a functional knowledge of French, Dutch and English.
Where applicable, the exercise of the function of president of the Belgian Autorité de la concurrence is considered a mission within the meaning of Article 323bis, § 1erThe Judicial Code.
§ 3. The president is retired when a serious and permanent infirmity no longer allows him to perform his duties properly.
Art. IV.18. The President may not accept any instruction in the decision-making in the execution of the tasks assigned to him by this book and in particular section 2 of this chapter as well as in the expression of opinions in the competition cases of the European Commission concerning the application of Articles 101 and 102 TFEU and Regulation (EC) No 139/2004 of the Council of 20 January 2004 concerning the control of the concentrations between companies.
Art. IV.19. The Vice-Chair replaces the Chair as Chair of the College of Competition in the event of conflict of interest or unavailability. The Vice-Chairperson shall, in the cases for which he is designated as President, have the same powers and duties as this book sets for the President.
In the event of unavailability, the chair is replaced as Chair of the Steering Committee by the older member.
In the event of a failure of the Vice-President and President, a third assessor is appointed and the oldest of the three assessors will sit as Chair of the Competition College.
Art. IV.20. § 1er. The President is responsible for:
1° to ensure the representation of Belgium in European and international competition organizations for any discussion relevant to the competence of the Belgian Competition Authority; and participates in other discussions in international and European institutions on competition policy legislation and regulations;
2° to contribute to the SPF Economy, the Parliament, the government or other bodies to the preparation and evaluation of the competition policy in Belgium, to contribute to a better understanding of this policy, to direct the studies and to informally resolve the issues and challenges relating to the application of the competition rules in cases in which there is no formal instruction as referred to in Article IV.41, § 1er;
3° to contribute to the preparation of Belgian competition rules and regulations;
4° to represent the Belgian Autorité de la concurrence in the procedures referred to in Articles IV.75 to IV.79.
§ 2. A service of the president is established within the Belgian Competition Authority. This service is headed by the President and consists of staff of the Belgian Competition Authority assigned to this service by the Steering Committee. It may also appeal for the exercise of the duties referred to in paragraph 1erto the members of the auditorate referred to in Article IV.27, § 1erup to a percentage of their time set by the Steering Committee.
Sub-section 2. - College of Competition
Art. IV.21. The College of Competition is the decision-making college that, by business, is constituted by the chair to make the decisions referred to in section 2 of this chapter.
Art. IV.22. § 1er. The College of Competition is composed of:
1° of the President or the Vice-President Assault;
2° of two assessors designated on the alphabetical lists of assailants.
The appointment of assessors shall be in alphabetical order in the lists referred to in paragraph 2, in turn taking into account the language of the procedure.
At the College of Competition sits at least one lawyer with experience in dispute resolution; if possible at least one member has another degree.
If a case cannot be attributed to a vice-president assessor or an assessor of the language group corresponding to the language of the procedure without creating a conflict of interest, the designation is made on the basis of the list of the other language group.
§ 2. The Vice-President assailant, who is of another linguistic role than the president, and the assessors, at a maximum of 20, are appointed for a renewable term of six years by the King by order deliberately in the Council of Ministers.
They are divided into two lists of the same number, in alphabetical order, according to the Dutch or French linguistic group, determined by the language of the master's degree to which they belong.
On each list, the diplomas of assessors will be mentioned.
§ 3. In order to be appointed Vice-President/Assessor, the candidate must meet the conditions of appointment set for the President referred to in Article IV.17.
§ 4. The Vice-Chair and the assessors who sit in a case may not accept any instruction in the course of the decision-making in accordance with the tasks assigned by this book and in particular section 2 of this chapter.
Subsection 3. - Steering Committee
Art. IV.23. The Steering Committee is responsible for the direction of the Belgian Autorité de la concurrence.
Art. IV.24. § 1er. It is composed:
1st of the President;
2° of the Auditor General;
3° of the Director of Economic Studies
4° of the Director of Legal Studies.
In the event of a vote-sharing, the president has a predominant voice.
§ 2. The Director of Economic Studies and the Director of Legal Studies are appointed by the King, by order deliberately in the Council of Ministers, for a renewable term of six years, following a professional fitness examination as referred to in Article IV.17.
Art. IV.25. The Steering Committee is responsible, inter alia:
- the organization and composition of the office of the president and the auditorium;
- establishing guidelines for the application of competition rules;
- the drafting of an annual note in which management priorities are established and communicated to the Minister;
- the drafting of the rules of order of the auditorship which is approved by the King.
Sub-section 4. - Auditor General and the Auditor General.
Art. IV. 26. § 1er. The Auditor General is appointed by the King, by order deliberately in the Council of Ministers, for a renewable term of six years.
To be appointed Auditor General, the candidate must meet the conditions of appointment set for the President referred to in section IV.17.
Where applicable, the exercise of the general auditor function of the Belgian Autorité de la concurrence is considered a mission within the meaning of Article 323bis, § 1erThe Judicial Code.
§ 2. The Auditor General fulfills the missions that this book and title 2, chapter 1er, section 2, in particular gives it.
In particular, it is responsible for:
1° of the direction of the auditorate and the coordination and direction of the instructions;
2° to receive the injunctions referred to in Article IV.41, § 1er3°, and complaints of restrictive competition practices;
3° of the opening of an instruction in the cases referred to in Article IV.41, § 1erand the setting of the order in which these cases are handled, after the opinion of the Director of Economic Studies;
4° to receive concentration notifications;
5° to issue orders of mission when the staff of the Belgian Competition Authority assist the officials of the European Commission during an inspection ordered by the European Commission pursuant to Regulation (EC) No 1/2003 on the implementation of the competition rules provided for in Articles 101 and 102 of the Treaty;
6° to ensure the enforcement of decisions made by the Competition College and the Court of Appeal in respect of competition rules.
§ 3. In the event of absence or incapacity, the Auditor General is replaced by the oldest auditor or, in the case of seniority parity, by the oldest.
§ 4. The Auditor General is retired when a serious and permanent infirmity no longer allows him to perform his duties properly.
§ 5. The Auditor General may not accept any instruction concerning a case in the course of the decision-making in the execution of the tasks that this book and section 2 of this chapter in particular confer upon him.
Art. IV.27. § 1er. An auditorate is established within the Belgian Competition Authority.
The auditorate is composed of the staff of the Belgian Autorité de concurrence assigned by the Steering Committee to this service on the understanding that the president of the Belgian Autorité de concurrence can appeal to them to the availability rate set by the Steering Committee.
§ 2. The Auditor General shall designate for each case that the Belgian Competition Authority decides to deal in accordance with Articles IV.26, § 2, paragraph 2, 3, and IV.41, § 1er, and for each concentration notification, a member of the auditorship staff who is charged as auditor of the daily direction of the instruction.
The auditor who is responsible for the day-to-day direction of an instruction team can only receive instructions from the Auditor General.
§ 3. The Auditor General shall designate for each case referred to in paragraph 2 a team of auditors in charge of the instruction under the supervision and under the direction of the auditor who is responsible for the daily direction of the instruction.
Members of the auditory staff, who are part of an instructional team, may only be instructed about the auditor-general or auditor-general who is responsible for the day-to-day direction of the instruction.
Art. IV.28. The auditors referred to in Article IV.27, § 2, who are responsible for the day-to-day direction of an instruction, shall fulfil the duties of Title 2, Chapter 1erSection 2, confers on them.
Art. IV.29. For the fulfilment of the duties that the law and in particular title 2, chapter 1er, section 2, confers on the auditory, the Auditor General shall designate for each case that the Belgian Competition Authority decides to deal with in accordance with Articles IV.26, § 2, paragraph 2, 3, and IV.41, § 1er, and for each notified concentration, a cell composed of the Auditor General, the auditor responsible for the daily direction of the instruction and another member of the auditorship staff who is not part of the training team.
Art. IV.30. § 1er. The auditorium is charged:
1° to file complaints;
2° of application of section 2, subsection 4.
§ 2. Notwithstanding section IV.28, auditors are responsible for:
1° to direct and organize the instruction;
2° at the request of interested natural or legal persons or on their own initiative, to decide on the confidential nature of the data provided to the Belgian Competition Authority or the auditory during the proceedings;
3° to establish and file the motivated draft decision at the College of Competition;
4° to issue the orders of mission, including those referred to in Article IV.41, § 3, paragraph 8, except when the staff of the Belgian Competition Authority assist the officials of the European Commission for an inspection ordered by the European Commission pursuant to Regulation (EC) 1/2003 on the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty;
5° to apply Article IV.63.
§ 3. Auditors may perform all acts relating to the fulfilment of their mission, except those reserved by this book to the auditory.
Art. IV.31. The auditorium is assisted by a secretariat.
The secretariat is also responsible for carrying out the tasks of a Registry for all proceedings before the Competition College and the Chair.
Sub-section 6. - Professional secret and immunity
Art. IV.34. The President, the members of the College of Competition, the Auditor General, the directors of economic and legal studies and the other members of the staff of the Belgian Competition Authority, as well as any other person working under their authority, are subject to professional secrecy and may not disclose, without prejudice to the provisions of subsection 10 of section 2 and royal decrees taken under article IV.43, paragraph 2, to any person or authority other than that information
They can only use this data and information for the purpose for which it was collected.
Art. IV.35. The obligation set out in Article IV.34 also applies to the representatives of the Belgian Autorité de la concurrence and the experts participating in the meetings of the advisory committee referred to in Article 14 of Regulation (EC) No. 1/2003 of the Council of 16 December 2002 concerning the implementation of the competition rules provided for in Articles 101 and 102 TFEU and Article 19 of the Regulation (EC) No. 139/2004 of the Council of 20 January 2004 concerning the control of the companies.
Art. IV.36. The President, the Vice-President, the assessors who sit in a case, the Auditor General, the directors of economic and legal studies and the staff of the Belgian Competition Authority are entitled in the exercise of their functions to the same immunities as the agents of the State.
Sub-section 7. - Incompatibility
Art. IV.38. The President, the Vice-President assailant or the assessors who sit in a case, the Auditor General, the directors of economic and legal studies and the staff of the Belgian Competition Authority, as well as any person working under their authority, shall not assume the defence of the persons concerned, either verbally or in writing or give them consultations.
The President, the Auditor General, the directors of economic and legal studies and the staff of the Belgian Competition Authority, as well as any person working under their authority, cannot:
1° make paid arbitration;
2° either personally or by interposed person, engage in any kind of trade, be a business agent or participate in the direction, administration or supervision of commercial companies or industrial or commercial establishments.
Subsection 8. - The Competition Commission
Art. IV.39. It is established, within the Central Council of the Economy, a parity advisory commission known as the Competition Commission and having a competence to advise on all general competition policy issues, that it exercises on its own initiative or at the request of the Minister.
Art. IV.40. The King shall determine the composition and functioning of the Competition Commission and its secretariat.
The President, the effective members and their alternates shall be appointed by the Minister.
The King also sets out by order deliberately in the Council of Ministers the amount of allowances allocated to the President and members of the Commission as well as to any person called upon to cooperate with the Commission.
Section 2. - Procedures
Sub-section 1re. - Training procedure
Art. IV.41. § 1er. Instruction of cases as referred to in Article IV.27 shall be:
1° upon request of the interested parties referred to in Article IV.10 in the case of a notified concentration;
2° ex officio or on complaint of a natural or legal person demonstrating a direct and current interest in the case of an offence under Articles IV.1, § 1erIV.2 and IV.10, § 1eror in case of non-compliance with a decision made under Articles IV.10, § 7, IV.48, IV.49, IV.61 or IV.62;
3° on request or injunction of the Minister;
4° upon request of the Minister of Average Classes, a public body or another specific public institution, responsible for the control or supervision of an economic sector in the case of an offence under Article IV.1, § 1erArticle IV.2 or Article IV.10, § 1er;
5° ex officio or upon request of the Minister for a Royal Decree of Exemption by category of agreements, decisions and concerted practices on the basis of Article IV.5.
§ 2. In the performance of their assigned tAches, auditors may collect all necessary information from companies and business associations. They set the time limit for the release of this information.
When auditors apply for information to a business or business association, they indicate the legal basis and purpose of their application.
If a business or business association does not provide the information within the time provided by the auditor or provides it in an incomplete, inaccurate or uninformed manner, the auditor may require the information by reasoned decision.
This decision specifies the information requested and sets the time limit for the information to be provided. When the request for information decision is addressed to one of the notifying companies, it also suspends the deadlines set out in section IV.61 until the day of the provision of the information or no later than the day on which the deadline set by the auditor expires.
The auditor shall notify the undertakings to which the information is required.
§ 3. Without prejudice to the powers of police officers of the local and federal police, the auditors and staff of the Belgian Competition Authority commissioned by the Minister are competent to search for the offences of this book and to find these offences by minutes of evidence to the contrary.
They are also competent to search for any useful information and to make any necessary observations for the application of articles IV.6, IV.7., IV.9, IV.10 and IV.11.
They collect all information, receive any written or oral testimony or testimony, be communicated, regardless of the holder, any documents or information that they consider necessary for the performance of their mission and which they may take copies and make the necessary findings on site.
They may carry out searches in the premises, means of transport and other places of the enterprises where they have reason to believe that they will find documents or information that they consider necessary for the performance of their mission and which they may take a copy, as well as in the domicile of the business leaders, administrators, managers, directors, and other personnel as well as in the domicile and professional premises of the natural or legal persons,
In carrying out their mission, they may seize on site and affix seals for the duration of their mission and to the extent that it is necessary for the purpose of the mission, without being able to exceed 72 hours, in premises other than those of companies or business associations. These measures are found in a report. A copy of this report is given to the person who has been the subject of these measures.
In carrying out their mission, they can demand the public force.
To conduct a search, seizure or affixing of seals, the staff of the Belgian Competition Authority referred to in paragraph 1er must also be carrying a specific mission order issued by the auditor. This order of mission specifies the purpose and purpose of their mission.
The Auditor General may commit experts to which he determines the mission.
§ 4. Notwithstanding the specific laws that guarantee the secrecy of statements, public administrations lend their assistance to listeners in carrying out their mission.
§ 5. In the exercise of their training mission, the auditors, the staff of the Belgian Autorité de la concurrence and any person working under their authority in their instructions shall comply to:
1° the hearing of persons, except in the provisions of Article 31, paragraph 3, of the Act of 15 June 1935 concerning the use of languages in judicial matters;
2° the writing of summonses, minutes and reports, to the provisions of Article 11 of the same Law. When more than one person is instructed, the draft decision of the auditor referred to in Article IV.42, § 5, shall be written in the language of the majority established in accordance with the provisions of Article 11. In case of parity, it will be made use of one of the usual languages in Belgium according to the needs of the cause.
§ 6. Before forwarding to the President the draft decision referred to in Articles IV.42, § 5, IV.58, § 4, or IV.62, § 2, the auditor shall establish an instruction record which shall contain all the documents and data collected during the course of the instruction and which shall prepare an inventory and shall decide on their confidentiality.
The confidential nature of the data and documents is determined in respect of each natural or legal person who is aware of the motivated decision.
The auditor prepares a procedural file that contains only the documents and data on which the auditor or auditor relies in his/her proposed reasoned decision. The confidentiality classification assigned to these parts is attached. The procedural file is filed together with the substantiated draft decision.
§ 7. Where the auditor is of the opinion that data that have been classified as confidential by the natural or legal persons who have provided them, do not have a confidential nature vis-à-vis the undertaking concerned, the auditor shall notify, by letter, fax or e-mail, the natural or legal persons who have provided such data and invite them to take a position on this point by letter, fax or e-mail within the time limit set by the auditor.
The listener then pronounces. The auditor may decide that the interest in an effective application of this book prevails over the protection of the confidentiality of the data in question. The auditor shall notify the individual or legal persons who provided this data.
When a natural or legal person invokes and motivates the confidentiality of the data it transmits, it provides at the same time a non-confidential version or summary as long as it is not already in the file. If confidentiality is accepted by the auditor, confidential documents are removed from the instruction file and replaced by the non-confidential version or summary. If no summary or non-confidential version is provided, the data will be considered non-confidential unless otherwise decided under the fifth paragraph.
When the auditor does not accept the confidentiality of the data, the auditor shall inform the natural or legal person who provided the data by mentioning the reasons why the data cannot be considered confidential. This communication is made by letter, fax or e-mail.
The auditor may decide, in the interest of the instruction, that certain data that it designates and that have been provided by the parties or third parties are to be considered confidential. It shall inform the natural or legal person who provided the data by letter, fax or e-mail. In this case, the Panel requests the provision of a non-confidential version or summary in accordance with the third paragraph. This decision is not subject to appeal.
§ 8. The auditor's decisions regarding the confidentiality of the data may be appealed to the President by the natural or legal persons who provided the data within three working days of the notification of the decision. The Chairperson shall designate the Vice-Chair or assessor who decides on confidentiality and shall not sit in the Competition College seized by the same case.
The Vice-Chair or designated assailant shall hear the undertaking or association of the undertakings concerned, as well as the Auditor General or the auditor delegated within five working days of the receipt of the appeal and shall decide within five working days after the hearing of the parties. The five working days are reduced to two working days if the instruction concerns a concentration. No separate appeal is possible against this decision.
§ 9. The auditor or auditor may not disclose any confidential information until there is a decision on the appeal.
Sub-section 2. - Rules of instruction specific to restrictive competition practices
Art. IV.42. § 1er. Complaints about restrictive practices are brought before the Auditor General.
§ 2. If the auditor concludes that the complaint is inadmissible or that the complaint is not substantiated or that the complaint is prescribed, the auditor shall classify the complaint by reasoned decision. The auditor may also classify a complaint by reason of decision with respect to the policy of priorities and available means. The classification decision is notified, by registered letter, to the complainant, stating that he may consult the procedural file with the secretariat, obtain a copy against payment, and that he may lodge an appeal against the ruling of classification with the President who constitutes the College of Competition who will be familiar with the appeal.
§ 3. The appeal referred to in § 2 shall be brought, barely inadmissible, by reasoned and signed request, filed with the secretariat within thirty days of notification of the decision. The request shall, barely invalid, meet the conditions set out in Article IV.79, § 4. The chair may set the time limits for a company referred to in the complaint and the complainant to file written submissions. The Chairperson shall, where appropriate, decide on the confidentiality of documents and data.
Only in the event of a decision to classify without action motivated by the management of priorities or by the available means, the chair of the College of Competition may, at the request of the appellant, and if serious reasons are put forward, decide that the auditorate will clarify its motivation before the Competition College decides on the appeal.
The College of Competition judges on exhibits. The College of Competition decision is not subject to appeal or opposition. If the College of Competition considers that the appeal is based, the file is referred to the auditory.
§ 4. When the auditor is of the opinion that the complaint or, where appropriate, an on-line instruction is substantiated, the auditor general shall inform the undertakings and natural persons whose activity is the subject of the instruction of the grievances against them, and shall give them access to the material evidence used to that effect and to any non-confidential version of the documents and information collected during the course of the investigation. He gives them a period of at least one month to respond to this communication.
§ 5. Within a maximum period of one month after receipt of the answers referred to in paragraph 4 of this provision, or in the absence of a response after expiry of the reply period, the auditor shall file on behalf of the auditorate a draft decision with the President. This decision proposal is accompanied by the procedural file with reference to the assigned confidentiality classification as well as an inventory of them.
Upon receipt of the draft decision, the Chair shall promptly form the Competition College, which shall be familiar with the matter and shall forward the draft and the procedural record to it.
Art. IV.43. The King may prescribe the terms and conditions for the constitution and introduction of the files as well as the terms and conditions of the proceedings before the College of Competition, the President and the Auditorate.
In the economic sectors under the control or supervision of a specific public body or other public institution, the King may, after consultation with these bodies or institutions, settle the cooperation between the Belgian Competition Authority and these bodies or institutions with regard to the mutual instruction and exchange of confidential information.
Art. IV.44. The President may, on his or her own motion or at the request of the Minister or Minister with the sector concerned in his or her powers, conduct or conduct general or sectoral investigations if there are serious market failure indices. If there are also serious indications of the existence of practices prohibited by articles IV.1, § 1er, and IV.2 and sections 101 and 102 TFEU, or if companies, business associations or individuals interviewed refuse their cooperation, it may ask the Auditor General that the auditor will assist in a general or sectoral investigation. The provisions of Article IV.41 shall apply by analogy to the instruction by the auditory, with the exception of paragraphs 4 to 8 of paragraph 3.
Subsection 3. - Decision on restrictive practices
Art. IV.45. § 1er. At the same time as the filing of the draft decision referred to in Article IV.42, § 5, the auditor shall notify the companies and natural persons whose activity has been the subject of the instruction and transmit a copy of the draft decision. It shall inform them that they may consult the record of the instruction and the procedural record referred to in Article IV.41, § 6, with the secretariat of the auditorate and obtain a copy against payment.
The secretariat shall bring the draft decision to the attention of the natural or legal persons who have brought the complaint. If the College of Competition considers it necessary, natural or legal persons who have introduced the complaint and other persons whom the College of Competition will hear in accordance with paragraph 5, paragraphs 2 and 3, may receive a non-confidential version of the draft decision referred to in Article IV.42, § 5.
§ 2. The Auditor General invites companies and individuals whose activities have been investigated to indicate the confidential passages of the draft decision with a view to transmitting a non-confidential version of the project to the natural or legal persons who have filed the complaint and to other persons whom the College of Competition will hear in accordance with paragraph 5, paragraphs 2 and 3. The Auditor General makes a decision in this regard, which is not subject to separate appeal.
Persons who have filed the complaint and all other natural or legal persons heard by the College of Competition do not have access to the procedural and educational record unless the President decides otherwise on the procedural file.
Where persons other than companies that are the subject of the instruction, wish to communicate confidential information to the College of Competition, the Vice-President Assault or an Assessor designated by the President who is not a member of the College of Competition shall decide on confidentiality, as the Auditor does, in accordance with the procedure provided for in Article IV.41, §§ 6 and 7. Confidential documents do not, therefore, form part of the procedural file and are replaced by a non-confidential version or summary to be obtained by the parties that provided the data within the time limit set by the Vice-Chair or assailant. This decision is not subject to separate appeal.
§ 3. As soon as the companies that are the subject of the instruction have received access to the instruction file and the procedural file pursuant to §§ 1er and 2, the parties have a two-month timeframe to file their written submissions and the documents of the instruction file they wish to add to the procedural file.
They may not add evidence that was not filed during the pre-trial investigation unless it concerns evidence of a fact or response to grievances that were not yet informed.
The President extends this period to the reasoned request of the parties or the Auditor General only when he considers it necessary and for a period that may not exceed the requested duration.
At their request, the President decides to access the written comments of the undertaking being instructed by the other companies that are also subject to the instruction. The Committee shall decide on the confidentiality of the data contained in these written comments.
Where the College of Competition, pursuant to § 5, paragraph 2 or 3, has granted access to the hearing to natural or legal persons, the President may set a time limit in which they may file their written submissions, so that the listener and the parties concerned may still file their written replies.
§ 4. Upon receipt of written comments from the parties entitled to file or expiry of the time limit in which written comments may be filed, the written procedure is closed and the President shall hold without delay a hearing from the Competition College. This hearing shall be held within a minimum period of one calendar month and not more than two calendar months after the closing of the written procedure.
§ 5. The College of Competition conducts each case at the hearing. He hears the auditor and the companies and individuals whose activity has been investigated, as well as the complainant, at the request of the complainant.
When deemed necessary, the College of Competition shall hear any natural or legal person.
If natural or legal persons justifying sufficient interest ask to be heard, they are entitled to their request. In the economic sectors under the control or supervision of a specific public body or other public institution, these bodies or institutions are to be considered to be appropriate for sufficient interest. In all cases, the Minister and the directors of economic and legal studies should be considered to be of sufficient interest.
Failure to appear by the parties convened or their representative does not affect the validity of the proceedings.
§ 6. After the hearing, the College of Competition takes the matter in deliberation and decides within one month. This period is suspended when the nature of the proposed decision requires consultation with the European Commission.
§ 7. The College of Competition's decision on the merits of the case cannot be based on the documents that have been accepted in confidence, so that the companies that are the subject of the investigation could not be aware of them.
§ 8. The King sets out the procedure before the Competition College and the conditions for obtaining copies.
Art. IV.46. § 1er. A total or partial exemption from the monetary penalties provided for in this book may be granted to a company or association of companies that, together with others, has implemented a practice prohibited by Article IV.1, if it has helped to establish the reality of the prohibited practice and to identify its authors, including by providing information that the Belgian Autorité de la concurrence did not previously have, by proving § IV.er, whose existence was not yet established, or recognizing the existence of prohibited practice.
When the Auditor General or the auditor he or she proposes, the Chair shall be the College of Competition, which shall be familiar with the matter and shall transmit the proposal to it.
As a result of the company's or business association's approach, the College of Competition, at the request of the Auditor General or the auditor delegated, adopts a notice of leniency, which specifies the conditions to which the exemption envisaged after the company or association of companies concerned has submitted their observations. This notice is forwarded to the company or association of companies and is not published.
When deciding under this section, the College of Competition may, if the conditions specified in the notice of leniency have been met, grant an exemption from monetary penalties proportionate to the contribution made to the establishment of the offence.
§ 2. Individuals who have acted on behalf of or on behalf of a business or business association that, together with others, has implemented a practice prohibited by Article IV.1, may apply for immunity from prosecution with the auditorate in respect of the offences referred to in Article IV.1, § 4.
The College of Competition shall grant, at the request of the Auditor General or the Auditor that he or she delegates, the immunity of prosecution if that person has helped to prove the existence of a practice prohibited by Article IV.1, § 1er, and to identify participants, in particular by providing information that the Belgian Competition Authority did not yet have, by providing evidence of a practice defended by Article IV.1, § 1er, whose existence was not yet established, or recognizing the existence of a practice prohibited by Article IV.1, § 4.
The immunity of prosecutions may be granted to all persons who meet the conditions set out in this provision, provided that they cooperate in a leniency application by a company for which they act.
§ 3. After the adoption of the notice of leniency or the granting of immunity to natural or legal persons, the documents and information provided by the applicant may be part of the record of instruction or procedure, but access may not be granted in any other manner without prejudice to section IV.69.
§ 4. Without prejudice to the limitation period, the auditor-general or the auditor he or she delegates may apply for a penalty against the person concerned if the College of Competition finds that the conditions of the personal leniency notice referred to in § 2 have not been met.
§ 5. A request for immunity from sanctions by a natural person does not prevent the granting of a full exemption from the financial penalties to the company under § 1er.
Art. IV.47. The College of Competition may, after the procedure referred to in Article IV.45 concerning a complaint, application or instruction of an ex officio, declare, by reason of decision, that according to the elements of which the College of Competition is aware, it is not necessary for the College to intervene.
Art. IV.48. After the procedure referred to in Article IV.45, the College of Competition may, by reason of decision:
1° that there is a restrictive competition practice and, where appropriate, order the cessation of competition, if applicable, in accordance with the terms prescribed by the College of Competition;
2° that there is no restrictive competition practice, provided that there is no allocation of trade between Member States of the European Union;
3° that Article IV.4, paragraph 2, or a Royal Decree within the meaning of Articles IV.4, paragraph 3 and IV.5 does not affect in an individual case, where the restrictive practice of competition in question produces effects incompatible with Article IV.1, § 3;
4° that a regulation within the meaning of Article IV.4, paragraph 1er, has no effect in an individual case, where the restrictive competition practice produces effects incompatible with Article 101, § 3, TFEU in the national territory or part thereof, which has all the characteristics of a separate geographical market.
Art. IV.49. § 1er. When the College of Competition considers adopting a decision requiring the cessation of an offence and the companies concerned offer commitments to meet its concerns, it may, by decision, make mandatory commitments to businesses. The auditor may request that the auditor file a report on the proposals for undertakings within the time frame that the auditor determines. The decision can be adopted for a fixed period and conclude that there is no longer a place than the Belgian Competition Authority. This decision is without prejudice to the ability of national jurisdictions to see the existence of restrictive practices for the past and does not imply any prejudice on the part of the company concerned.
§ 2. The President may reopen the procedure provided for in Articles IV.41 to IV.45, upon request or on his or her own initiative:
1° if one of the facts on which the decision is based undergoes a significant change;
2° if the companies concerned contravene their commitments, or
3° if the decision is based on incomplete, inaccurate or uninsured information provided by the parties.
Art. IV.50. If the agreement, decision or concerted practice on which the instruction was carried is subject to a regulation of the Council of the European Union or the European Commission declaring Article 101, paragraph 1er, the EC Treaty unenforceable or a Royal Decree within the meaning of Article IV.5, the College of Competition finds it and makes a classification decision.
Sub-section 4. - Transactions procedure
Art. IV.51. During an instruction based on Article IV.1 or Article IV.2, combined or not with the application of Article 101 or Article 102 TFEU, the auditor may, at any time of the proceedings but before the filing of the draft decision referred to in Article IV.42, § 5, before the president, set a time limit to the undertaking or association of undertakings whose activity is the subject of the instruction to be made The auditor is not required to consider the replies received after the expiry of this period.
Art. IV.52. When the company or association of enterprises whose activity is the subject of the instruction indicates that they are willing to conduct discussions with a view to reaching a transaction, the auditor shall communicate in writing its intention to arrive at a transaction to the company or to the relevant company association. The auditor identifies the grievances on which he believes he can rely and gives them access to the material evidence used for this purpose, as well as any non-confidential version of the documents and information collected during the course of the investigation.
The auditorium also provides knowledge of the minimum and maximum fines it envisages to propose to the College of Competition.
Art. IV.53. When it appears to the auditorate that after subsequent discussions a transaction is possible, and after having taken note of the documents and information referred to above, the auditor may set an endeavored time limit for the undertaking or association of the companies concerned to undertake to provide a transaction declaration. In this statement, they must recognize their participation in the offence cited and their responsibility and accept the sanction presented.
The auditor is not required to consider the transaction declarations received after the expiry of the period. The auditor may terminate the transaction procedure at any time.
Art. IV.54. When the statements of the company or association of the companies concerned resume the content and acceptance of the offence referred to in the communication of the auditorate, the auditorate may notify the company or association of the companies concerned of a draft transaction decision in which this is recognized and the fine fixed.
For the calculation of the amount of the fine in accordance with the guidelines of the Belgian Autorité de la concurrence, and in the absence of those of the European Commission, on the calculation of fines, the auditor may apply a 10% reduction and also take into consideration the commitment of the company or association of companies concerned to pay damages.
In order to reach a transaction, the companies or business associations concerned must confirm, within a period determined by the auditorate, that the communication of the draft decision reflects the content of their transaction declaration and accept the sanction mentioned in the project.
Art. IV.55. During the simultaneous application of Article 101 or Article 102 TFEU, the auditor shall at the same time inform the European Commission of this draft decision under Article 11, paragraph 4, of Regulation (EC) No. 1/2003.
Art. IV.56. All documents and data exchanged between the auditorate and the company or company concerned are confidential.
Art. IV.57. If the company or association of the companies concerned have communicated their confirmation within the time limit, the auditor shall make a decision, including the fine, which shall close the procedure. This decision is equivalent to a decision of the College of Competition as referred to in section IV.48.
If, however, the European Commission makes comments that require a change in the draft decision and if the auditorship does not decide to terminate the transaction procedure, the auditorship takes a new draft decision and the procedure provided for in article IV.54 re-appears.
The Auditor General shall forward the decision by registered letter to the company or association of the companies concerned. The Auditor General also forwards a copy of this decision to the Secretariat for publication, and to the complainant if there is a complainant.
The company or company association concerned cannot appeal against the transaction decision.
Subsection 5. - Concentration Instruction
Art. IV.58. § 1er. The auditor designated by the Auditor General shall conduct the investigation of the matter upon receipt of the notification or, if the information to be provided is incomplete, upon receipt of the full information.
When the conditions for the application of the simplified procedure referred to in Article IV.63 are not met, the auditor shall forthwith transmit a copy of the notification of concentration made under Article IV.10 to the Chairperson who shall constitute the College of Competition who shall be familiar with the matter.
§ 2. The auditor in charge of the day-to-day management of an instruction may charge the staff of the auditorate with duties of instruction.
§ 3. The auditor designated under section IV.27 shall file the draft decision with the President as well as the procedural record consisting of the only documents and data on which the auditor relies in his or her project with reference to the assigned confidentiality classification and an inventory of the parts thereof. This inventory determines the confidentiality of the documents with respect to each of the parties that have access to the record.
§ 4. The draft decision shall be filed within 25 business days from the day after the day on which the notification is filed with the Auditor General. When the information provided in the notification is not complete, the deadline is from the day after the full information is received. The twenty-five working days are extended by five working days when commitments have been made pursuant to Article IV.59, paragraph 2.
§ 5. The auditor shall, at the filing referred to in § 4, transmit a copy of the draft decision to the notifying parties. It also communicates, after removing business secrets and confidential information, a copy of the project to the representatives of the most representative organizations of the workers of these companies or to those designated by them.
It shall bring to the attention of the persons referred to in the first paragraph that they may consult the file with the secretariat, excluding the documents that are confidential in respect of them, and that they may obtain a copy against payment.
Prerequisitely, the listener decides on the confidentiality of documents and data and classifies them in a separate annex that it transmits to the secretariat.
Art. IV.59. When the auditor considers that effective competition in the Belgian market or a substantial portion of the market would be significantly hampered, in particular by the creation or strengthening of a dominant position, in accordance with Article IV.9, § 4, the auditor shall inform the companies participating in the concentration, at least five working days before the filing of the draft decision with the President, as provided for in Article IV.58, § 3.
In such cases, companies that are parties to the concentration have a five-day period to submit to the auditor commitments to obtain a decision on the basis of Article IV.61, § 2, paragraph 1er1°.
The auditor hears the companies that are parties to the concentration on the commitments presented and takes a position on those commitments in the draft decision.
Sub-section 6. - Concentration Decision
Art. IV.60. § 1er. The College of Competition conducts each case at the hearing. The hearing shall be held at least ten working days after the submission of the draft decision to the notifying parties.
§ 2. The College of Competition hears companies parties to concentration. They provide written comments and documents on file no later than the day before the hearing and provide a copy to the listener.
They may not add evidence that was not filed during the pre-trial investigation unless it concerns evidence of a fact or response to grievances that were not yet informed.
When it considers it necessary, the College of Competition dealing with the case hears any natural or legal person summoned by it.
It also hears third parties who justify a sufficient interest. In the economic sectors under the control or supervision of a public body or other specific public institution, these bodies or institutions are to be regarded as warranting sufficient interest. In all cases, the directors of economic and legal studies should be considered to be of sufficient interest.
Members of the boards of directors or directors of the companies participating in the concentration, as well as representatives of the most representative organizations of the workers of these companies, or those designated by them, are to be considered as justification of sufficient interest.
The failure to appear by the parties convened or their representative does not affect the validity of the procedure.
§ 3. Other individuals who participate in the concentration may communicate information to the Competition College no later than three working days prior to the hearing. The secretariat immediately communicates this information to the notifying parties and to the auditorate.
Where other persons who are parties to the concentration wish to communicate to the College of Competition confidential information, an auditor designated for this purpose by the Auditor General, who was not in charge of the instruction, shall decide on confidentiality, pursuant to the procedure provided for in Article IV.41, §§ 6 and 7. Confidential documents are then not attached to the file and are replaced by a non-confidential version or summary. This decision is not subject to separate appeal.
§ 4. The College of Competition's decision on the merits of the case cannot be based on the documents that have been made by third parties and whose confidentiality has been accepted, so that the notifying parties could not find out.
§ 5. The King sets out the procedure before the College of Competition and the conditions for obtaining copies.
Art. IV.61. § 1er. The College of Competition notes with a reasoned decision:
1° that the concentration falls within the scope of this book;
2° that the concentration does not fall within the scope of this book.
§ 2. If the concentration falls within the scope of this book, the College of Competition shall make one of the following reasons:
1° or it may decide that the concentration is admissible. It may include a determination of conditions or charges to ensure that the companies concerned meet the commitments they have made, in order to hear the qualifying concentration. When the College of Competition wishes to consider the conditions or charges that are not discussed in the draft decision, the companies concerned and the auditor are heard on this point and have at least two working days to decide on this matter. Notifying parties may modify the conditions of the concentration, until the College of Competition has made its decision. In this case, the Eligibility Decision addresses the concentration as amended;
2° or declares the permissible concentration when the companies concerned do not control more than 25% of any relevant market for the transaction whether it is horizontal or vertical relations;
3° or it can be found that there are serious doubts about the admissibility of the concentration and it may decide to initiate the supplementary instruction procedure referred to in Article IV.62.
The College of Competition decisions referred to in paragraph 1er shall be rendered within forty working days from the day after the day on which the notification is received, extended, if any, under Article IV.58, § 1er. This period is extended by fifteen working days when the companies concerned submit commitments to hear the qualifying concentration.
The concentration is deemed eligible where the College of Competition has not made its decision within the time limit set out in paragraph 2.
§ 3. The period referred to in § 2 may only be extended upon the express request of the notifying parties, and only for the duration offered by them. The College of Competition, in any case, authorizes an extension of fifteen working days and a new hearing if the notifying parties so request.
Art. IV.62. § 1er. If the College of Competition makes the decision referred to in Article IV.61, § 2, paragraph 1er, 3°, the auditor shall make a supplementary instruction and file a revised draft decision with the Chair, which shall promptly transmit it to the Competition College. The provisions of Article IV.58, with the exception of §§ 1er and 4 are applicable to the supplementary instruction and the revised draft decision.
No later than twenty working days after the date of the decision to initiate the proceedings in accordance with Article IV.61, § 2, first paragraph, 3°, notifying companies may submit to the auditor commitments to obtain an admissibility decision.
§ 2. The auditor shall file the proposed decision with the Competition College within thirty working days of the decision to initiate the proceedings. This period is extended for a period equal to that used by the notifying parties with a view to submitting commitments in accordance with paragraph 1er. This revised draft decision is communicated in accordance with Article IV.58, § 5.
Where the auditor is of the opinion that the concentration must be declared admissible in accordance with Article IV.9, § 3, the revised draft decision refers to the reasons why the concentration does not result in an effective competition that would be significantly hampered in the Belgian market or a substantial part of it, in particular by the creation or strengthening of a dominant position.
Where the auditor is of the opinion that the concentration must be declared inadmissible in accordance with Article IV.9, § 4, or must be subject to conditions and/or charges, the revised draft decision refers to the reasons why the concentration must be prohibited or must be subject to the conditions or charges that the auditor proposes.
§ 3. Companies parties to the concentration and persons involved in the proceedings in accordance with Article IV.60, § 2, shall file their possible written comments within ten working days of the filing of the revised draft decision, with a copy to the auditor and other parties to the case.
They may not add evidence that was not filed during the pre-trial investigation unless it concerns evidence of a fact or response to grievances that were not yet informed.
§ 4. When written submissions are filed pursuant to paragraph 3, the auditor may file an additional draft decision with the College of Competition within five working days after the expiry of the period provided for in paragraph 3. This revised draft decision is communicated in accordance with Article IV.58, § 5. Companies participating in the concentration submit their written submissions to the procedural record no later than the day before the hearing, with a copy to the auditor.
They cannot add parts that have not been filed during the pre-trial investigation.
Any additional written comments by the intervening parties are excluded from the discussion.
§ 5. The College of Competition initiates the case in accordance with Article IV.60.
§ 6. The decision of the College of Competition on the eligibility of the concentration is made within sixty working days of the decision to initiate the proceedings, if any extended in accordance with paragraph 2. This decision may be accompanied by conditions or charges that ensure that the companies concerned comply with the commitments they have submitted in order to hear that the concentration is eligible. When the College of Competition wishes to consider the conditions or charges that are not discussed in the draft decision, the companies concerned and the auditor are heard on this point and have at least two working days to decide on this matter.
The concentration shall be deemed to be the subject of a favourable decision when the College of Competition has not made its decision within sixty working days, if any extended as provided for in paragraph 2, when the undertakings concerned submit commitments in accordance with paragraph 2.
The time limit may only be extended upon express request by the parties, and for a period not exceeding the period proposed by the parties. The College of Competition in any case grants the requested extension with a maximum of twenty working days and a new hearing on request from the notifying parties to allow them to present new commitments.
The King may, after consultation with the Belgian Competition Authority, amend the period referred to in paragraph 1er.
§ 7. When the College of Competition finds in its decision that the concentration is not eligible, it orders, in order to restore effective competition, the splitting of companies or grouped assets, the end of joint control or any other appropriate measure.
Sub-section 7. - Instruction and Decision in Simplified Concentration Procedure
Art. IV.63. § 1er. Notifying parties may request the application of the simplified procedure. In this case, the following provisions are applied by derogation from the provisions of Articles IV.58, § 1er and §§ 3 to 5, and IV.59 to IV.62.
§ 2. The auditor shall conduct the investigation of the case as soon as he receives the notification provided for in Article IV.10 or, where the information to be provided is incomplete, as soon as he receives the full information.
§ 3. When the auditor arrives at the conclusion that the conditions for the application of the simplified procedure are met and that the notified concentration does not raise any objection, the auditor notes in a written decision that the auditor communicates to the notifying parties. At the same time, the auditor shall transmit a copy of this decision to the secretariat of the Belgian Competition Authority for publication.
§ 4. The auditor's decision referred to in paragraph 3 is considered, for the purposes of this book, as a decision of the College of Competition within the meaning of Article IV.61, § 2, first paragraph, 1°.
§ 5. When the auditor arrives at the conclusion that the conditions for the application of the simplified procedure are, in his opinion, not met or that there are doubts about the eligibility of the concentration, he finds it in a decision containing a summary motivation, which he communicates to the notifying parties, with a copy to the secretariat.
This decision is not subject to a separate appeal.
This auditor's decision ends the simplified procedure, so that sections IV.58 to IV.62 are fully applicable. In this case the notification is considered to have been incomplete since the beginning within the meaning of Article IV.58, § 1er. The notification is deemed complete on the day after the day on which the notifying parties provide the missing information referred to in the auditor's decision.
§ 6. The auditor shall communicate the decision referred to in paragraphs 3 or 5 to the notifying parties within fifteen business days. The concentration is deemed to be approved when the auditor has not communicated the said decision within the specified time limit.
Subsection 8. - Interim measures
Art. IV.64. § 1er. The College of Competition may, under the conditions set out in this section, take interim measures to suspend restrictive competition practices under investigation, if there is an urgent need to avoid a situation that could cause serious, imminent and difficult compensation to companies whose interests are affected by these practices or to adversely affect the general economic interest.
§ 2. Requests for interim measures are filed, together with the relevant documents, with the chair by the complainant, the auditorate, the minister or the competent minister according to the sector concerned. The President shall promptly form the College of Competition, which shall be familiar with the matter and shall forward the application to the College. In the event of a nullity, the applicant shall forward the same day as the filing, by registered mail or email with notice of receipt, copy of the application and the attachments to the undertakings or business associations against which the interim measures have been requested. The Secretariat shall transmit to the Auditor General a copy of this application and the attachments if it is not the applicant. It also transmits a copy of subsequent procedural documents to the Auditor General and, where appropriate, to the Minister in the event that the Auditor General is the applicant.
§ 3. The Chairperson, or the Vice-Chairperson or assailant delegated, shall determine the date of the hearing, which shall be held within one calendar month after the filing of the application, to which the applicants and the Auditor General or a listener delegated by him may be heard. The Secretariat shall bring this decision to the attention of applicants, companies or business associations to whom interim measures are requested, the Auditor General and the Minister. The Auditor General shall file any written submissions no later than six working days before the day of the hearing. The parties must have a five-day period before the hearing for the examination of the submissions and exhibits filed, with the exception of the passages that the chair of the College of Competition, or the deputy chair or assailant delegated, accepted confidentiality to them. Written submissions must be submitted to the secretariat referred to in Article IV.31, which forwards them to the President and the Auditor General. The party submitting comments must send a copy by registered mail or e-mail with notice of receipt to all other parties to the procedure.
§ 4. The deadlines referred to in paragraphs 3 and 6 may be extended for a maximum of two weeks. If these deadlines are extended to allow applicants to respond to the written comments of other parties, the other parties must have the same deadline as the applicants to respond to their reply.
§ 5. Parties that file parts may indicate the passages they consider confidential by motivating them and submitting a non-confidential summary. The President of the College of Competition, or the Vice-President assailant or the assailant delegated, shall rule on the confidentiality of the passages in question and no appeal shall be made against this decision.
6. Within one calendar month after the hearing referred to in paragraph 3, the College of Competition shall decide on a reasoned basis if there is reason to take the interim measures. If there is no decision within this period, the request for interim measures is presumed to be rejected.
The decision of the College of Competition cannot be based on documents to which companies have not been aware of any measures taken.
Subsection 9. - Publication and notification
Art. IV.65. The decisions of the College of Competition and the President shall be notified by the secretariat of the Belgian Competition Authority by registered letter with acknowledgement of receipt to the parties, complainants and the Minister, as well as to any person who may justify an interest in accordance with Article IV.45, § 5, or Article IV.60, § 2, and who has requested to be heard by the College of Competition.
The President who makes the decision takes into account the legitimate interest of companies to ensure that their business secrets and other confidential information are not disclosed.
The decisions referred to in the first paragraph mention the parties to which the notification is to be made.
In the event of a nullity, the notification letter indicates the time limit for appeal and the manner in which it may be exercised. The letter contains the names, qualities and addresses of the parties to whom the decision was notified.
Art. IV.66. § 1er. The general auditor shall, upon receipt, communicate any notification of concentration for publication by extract to the Belgian Monitor and on the website of the Belgian Competition Authority. This publication includes the names of companies that are parties to the concentration. The publication indicates whether the application of the simplified procedure is requested.
§ 2. The decisions of the College of Competition or the President, including those referred to in subsections 3 to 7 of this chapter, of the auditorship referred to in Article IV.30, § 1, 2°, and of the auditor referred to in Article IV.63, § 3, are published in the Belgian Monitor and on the website of the Belgian Competition Authority.
The decisions of the Court of Appeal of Brussels and the Court of Cassation are published in the Belgian Monitor and are notified to the parties, by the Registry concerned by registered letter, with acknowledgement of receipt.
The notices that the concentration is supposed to be authorized, in the absence of a decision, are also published in the Belgian Monitor and notified to the parties who participated in the concentration, as well as to any person who can justify an interest in accordance with Article IV.60, § 2, and who requested to be heard by the College of Competition.
Notices that the request for interim measures is, if no decision is taken, deemed rejected shall be notified to the applicants and to any person who has been involved in the proceedings.
The decisions referred to in the preceding paragraphs shall be communicated promptly, in the form intended for publication to the Belgian Monitor, to the Competition Commission.
In this publication and communication, the Chair of the College of Competition takes into account the legitimate interest of companies to ensure that their business secrets and other confidential information are not disclosed.
The notification of the decision of the College of Competition or the President of the College of Competition indicates that the decision is subject to appeal to the Brussels Court of Appeal within 30 days of the notification.
Not considered final decisions under this appeal procedure, the decisions that a concentration falls within the scope of this book and those that provide for the procedure provided for in Article IV.62.
Subsection 10. - Cooperation with the European Commission and the competition authorities of other EU Member States
Art. IV.67. When the Belgian Competition Authority, pursuant to Article 104 TFEU, determines the admissibility of agreements and the abuse of a dominant position in the common market, the decision is made in accordance with Articles 101, paragraph 1er, and 102 TFEU, according to the procedure and penalties provided for in this book.
Where the Belgian Autorité de la concurrence, pursuant to regulations or directives made on the basis of Article 103 TFEU, determines the application of the principles set out in Articles 101 and 102 TFEU, the decision shall be made in accordance with these regulations or directives, in accordance with the procedure and penalties provided for in this book.
Art. IV.68. The members of the staff of the Belgian Autorité de la concurrence designated for this purpose by the Auditor General are responsible, pursuant to Article 20, paragraph 5, of Regulation (EC) No 1/2003 of the Council, to carry out with the companies, the missions of assistance, verification or other within the framework of the monitoring of the rules of competition of the treaties of the European Communities, on their own initiative, at the request of the European Commission or
Members of the staff authorized to do so have the same powers and obligations as those of the mandated agents referred to in Article IV.41, § 3, when they intervene at the request of a competition authority of another Member State, and those of the mandated agents referred to in Article 20, paragraph 2, of Regulation (EC) No. 1/ 2003 when they intervene at the request of the European Commission.
Art. IV.69. For the purposes of Articles 101 and 102 TFEU and Regulation (EC) No 139/2004 of the Council of 20 January 2004 concerning the control of concentrations between enterprises, the President, the Auditor General and the staff of the Belgian Autorité de la concurrence may communicate to the European Commission and the competition authorities of the Member States any factual or legal elements, including confidential information obtained from such members as, if any, use as a means of proof of competition
Section 3. - Fines and constraints
Art. IV.70. § 1er. When the College of Competition makes a decision under Article IV.48, 1°, the College of Competition may impose fines on each of the companies and associations of the companies concerned not exceeding 10% of their turnover. In addition, it may, by the same decision, at the request of the auditor, impose on each of the companies and associations of the companies concerned, breaches for non-compliance with its decision, up to 5% of the average daily revenue per day of delay from the date it sets out in the decision.
These fines and fines may also be imposed in the case of application of articles IV.48, 3° and 4°, and IV.49, § 2, and in case of non-compliance with the decisions referred to in Articles IV.61, § 2, 1°, and IV.62, §§ 6 and 7.
§ 2. The offences under Article IV.1, § 4, are punishable by an administrative fine of 100 to 10,000 euros.
§ 3. Fines and fines referred to in §§ 1er and 2 above are not tax-deductible.
Art. IV.71. § 1er. The College of Competition may impose fines on persons, businesses or business associations up to 1% of the turnover when, deliberately or negligently:
1° they give inaccurate or uninformed indications on the occasion of a notification or request for information;
2° they provide the information incompletely;
3° they do not provide the information within the time limit;
4° they prevent or hinder the instructions provided for in Article IV.41 and the investigations referred to in Article IV.44.
§ 2. The same fines may be imposed when a company has conducted a concentration without prior notification in accordance with section IV.10, even if the concentration is eligible.
Art. IV.72. In the event of an offence under Article IV.10, § 5, the College of Competition may impose fines and offences referred to in Article IV.70, § 1er.
It may, in addition, inflict the offences referred to in Article IV.70, § 1erto enforce the order referred to in Article IV.62, § 7.
Art. IV.73. The College of Competition may inflict the term referred to in Article IV.70, § 1erin order to ensure compliance with the interim measures taken in accordance with Article IV.64 and the decision referred to in Article IV.41, § 2, paragraph 3.
In the latter case, the attack may be inflicted during the investigation.
Art. IV.74. The turnover referred to in sections IV.70 and IV.71 is the total turnover realized during the previous fiscal year in the national and export market. It is consistent with title VI of Book IV of the Corporate Code relating to the consolidated annual accounts of companies.
CHAPTER 4. - Other provisions
Art. IV.80. § 1er. The instruction referred to in Article IV.41 shall be limited to facts not more than five years old. This period is based on the date of the Auditor General's decision to conduct an instruction of office or the date of referral of the Auditor General pursuant to Article IV.41, § 1er.
However, for ongoing or repeated offences, this period runs only from the day the last offence ended.
§ 2. The limitation period for the instruction and decision procedure is five years from the date referred to in paragraph 1er.
However, for ongoing or repeated offences, this period runs only from the day the last offence ended.
The limitation period shall be interrupted only by any instruction or decision made within the period specified in paragraph 1er or by a reasoned request addressed to the President by the complainant or the applicant; these acts result in a new period of equal duration.
§ 3. The limitation period with respect to the imposition of fines or burials is:
1° three years in respect of offences relating to requests for information or the execution of searches;
2° 5 years in respect of other offences.
The limitation period runs from the day the offence was committed. However, for ongoing or repeated offences, this period runs only from the day the last offence ended.
The limitation period in respect of the imposition of fines or burials shall be interrupted by any act of the auditory or the College of Competition or, in respect of the application of sections 101 and 102 TFEU, of a competition authority of a Member State for the investigation or prosecution of the offence. The interruption of the limitation period takes effect on the day the act is notified to at least one company or association of companies involved in the offence.
Constituent of the interim acts of this period:
1st written requests for information from the auditory or competition authority of a Member State;
2° written search warrants issued to his staff by the auditory or by the competition authority of a Member State;
3° the undertaking of a procedure by the auditory or by a competition authority of a Member State;
4° the filing of the draft decision in accordance with Article IV.42, § 5, by the auditory or communication of the grievances by a competition authority of a Member State.
The interruption of the limitation period applies to all companies and associations of companies involved in the offence.
A new limitation period begins to run from each interruption. However, the statute of limitations is acquired by the day on which a period equal to the double of the statute of limitations expires without the College of Competition making a fine or breach. This period is extended for the period during which the prescription is suspended in accordance with the following paragraph.
The statute of limitations on the imposition of fines or burials is suspended as long as the College of Competition decision is pending before the Brussels Court of Appeal.
§ 4. The power to enforce the decisions taken under Articles IV.70 and IV.71 is prescribed by five years.
This period runs from the day the decision became final.
The limitation period for enforcement of sanctions is interrupted:
1° by notification of a decision amending the original amount of the fine or burial or rejecting an application for such an amendment;
2° by any act of the competent organ or of a member State, acting at the request of that competent organ, aimed at the recovery of the fine or the burial.
A new limitation period begins to run from each interruption.
The limitation period for enforcement of sanctions is suspended:
1° as long as a payment period is granted;
2° as long as the forced execution of the payment is suspended under a decision of the Brussels Court of Appeal.
Art. IV.81. If the company fails to pay the fine or the amount of money, the decision of the College of Competition, or its President, or the decision of the Brussels Court of Appeal passed in force of evidence, is forwarded to the SPF Finance for the recovery of the administrative fine.
The proceedings to be brought by the aforementioned administration are carried out in accordance with Article 3 of the State Law of 22 December 1949.
The King shall determine the time limits and terms and conditions for payment of fines and fines referred to in Articles IV.70 to IV.74.
Art. IV.82. The King may, by order deliberately in the Council of Ministers, set out the list of proceedings, including, inter alia, the measures of instruction, the costs of which are borne by the notifying parties or parties that have committed an offence in this book.
The King may, by order deliberately in the Council of Ministers, determine the amount, conditions and modalities for the collection of costs referred to in the preceding paragraph.
Art. IV.83. The instruction is carried out and the draft decision of the auditorate is written in the language of the Region in which the undertaking that is the subject of the instruction is established. In the event of a plurality of enterprises, the language used is that of the Region in which the majority of them are established. In case of parity, it will be made use of one of the usual languages in Belgium according to the needs of the cause.
If the company is established in the Brussels Region, the language, Dutch or French, is chosen by the complainant or by the body that is at the origin of the instruction.
The company which is the subject of the instruction and which is established in the Brussels Region may nevertheless request that the instruction be carried out and that the procedure be pursued in the other language, French or Dutch. The decision on language change in the procedure is taken by the Auditor General. The company or business association concerned may appeal against its decision to the President within three business days of notification of the decision. He hears the company or association of the companies concerned, as well as the Auditor General or the auditor whom he or she delegates within five working days of receiving the appeal, and shall take action within five working days after the hearing of the parties. This decision is not subject to separate appeal. »
Art. 5. In the same Code, a book V is inserted:
« LIVRE V. - Competition and price changes
PART 1er. - General provisions
Art. V.1. This title applies to prices practiced by companies, excluding prices of goods covered under title 2.
Art. V.2. Prices of goods and services are determined by free competition.
Art. V.3. When the Price Observatory finds a price or margin problem, an abnormal price change, or a structural market problem, it may consult the parties concerned, professional federations and consumer organizations, and reports its findings to the Minister. Its report is transmitted at the same time to the Belgian Autorité de la concurrence, which is seized of it and, if necessary, to the relevant sectoral regulatory authorities.
The report of the Price Observatory can be published, with respect to the confidentiality of the data. If this report contains business secrets, an expanded version of these business secrets can be published. Prior to any publication, the report of the Awards Observatory is transmitted to the parties concerned, professional federations or consumer organizations.
The Price Observatory may, within the framework of the legal and regulatory competence of the SPF Economie, be provided with all the supporting elements necessary to establish these findings.
The Price Observatory may, on its own initiative or at the request of the Minister, carry out the findings and analyses referred to in paragraph 1.
Art. V.4. § 1er. If it is urgent to avoid a situation likely to cause serious, immediate and difficult to repair damage to the companies concerned or to consumers whose interests are affected, or to damage the general economic interest, the College of Competition may, except for the prices of goods and services whose levels may be determined by or under the law, take interim measures to respond to the findings referred to in Article V, 3. These measures are fixed for a maximum period of six months. The Price Observatory may communicate to the College of Competition all information relating to prices and margins it has collected under Article V, 3. It takes into account the provisions of the Law of 4 July 1962 on Public Statistics and Regulation No. 223/2009 of the European Parliament and the Council of 11 March 2009 on European statistics, in particular statistical secrecy and the principle of purpose.
§ 2. The Chairperson, or the Vice-Chairperson or assailant delegated by him, shall determine the date of the hearing, which shall be held within fifteen days of the filing of the report of the Price Observatory, to which the latter and the parties concerned mentioned in this report are heard. The secretariat shall bring this decision to the attention of the parties concerned. The parties have a period of five working days prior to the hearing for the examination of the submissions and documents filed, with the exception of the passages of which the chair of the College of Competition, or the deputy chair or assailant delegated, accepted confidentiality to them.
The deadlines referred to in this paragraph and paragraph 4 may be extended for a maximum of two weeks.
If the report does not mention any parties involved, the President, or the Vice-President assailant or the assailant whom he delegates promptly invites the organizations represented at the Central Council of Economy and representing the sector(s) concerned.
§ 3. Parties that file exhibits may indicate the passages they consider confidential by motivating their approach and submitting a non-confidential summary. The President of the College of Competition, or the Vice-President assailant or the assailant delegated, shall rule on the confidentiality of the passages in question and no appeal shall be made against this decision.
§ 4. Within one calendar month after the hearing referred to in paragraph 2, the College of Competition shall decide by reason of decision whether there is reason to take the interim measures. In the absence of a decision within this period, no interim measure is defined.
The decision of the College of Competition may not be based on documents that have not been made available to companies or organizations referred to in paragraph 2.
§ 5. The College of Competition may prescribe any terms and conditions necessary for the implementation and enforcement of its decision.
§ 6. It may be provided with any supporting evidence necessary for the exercise of the powers conferred on it by this section.
It may, inter alia, prescribe the communication of all books, records and other accounting documents, which are prescribed by or under legal provisions.
§ 7. This article does not prejudice the competence of the Belgian Autorité de la concurrence as described in book IV.
Art. V. 6. The College of Competition means its decision to the Minister. When the College of Competition adopts interim measures, the Minister submits to the Government, within six months, a plan consisting of a structural change in the operation of the market in the sector concerned.
Art. V.7. § 1er. The Minister may enter into program contracts with individual or grouped companies with commitments, including the level of prices.
These contracts are entered into for a fixed period of time. They may be denounced by the parties with due notice.
These contracts are accompanied by a clause providing for compensation payable in the event of non-performance. The amounts due under this clause are enlisted by the Minister or his or her delegate, on a reasoned decision.
The reasoned decision is notified to the debtor. Upon receipt of this decision, the debtor has a fifteen-day time limit to appeal to civil courts. This appeal is suspensive and the decision is subject to appeal.
In the absence of a remedy as in the event of a rejection of the appeal, compensation that is not paid voluntarily is recovered as in the case of direct contributions.
§ 2. The Minister may also enter into a program contract with business associations active in the refinement, import or distribution of petroleum products.
If the professional association or several professional associations with which a programme contract is concluded, are representative for at least 60% of the quantities of petroleum products consumed in Belgium, the programme contract is binding on the entire sector. Where a professional association of the sector, on behalf of its members, has filed a reasoned complaint with the Minister against one or more elements that are part of the existing program contract, the Minister shall take this claim into consideration. In the month following receipt of the substantiated claim, the Panel commences a new negotiation of this claim under the programme contract. It shall inform within three months of receipt of the claim and by registered mail the relevant professional association of the outcome of this negotiation. The reasoned claim has no suspensive effect on the current program contract.
Art. V.8. When applying the provisions of this title, producers and distributors may not refuse to meet, to the extent of their potential and in conditions consistent with commercial use, the demand for products, services provided by distributors or consumers when they are not of an abnormal nature.
PART 2. - Fixing drug prices and assimilated
CHAPTER 1er. - Scope of application
Art. V. 9. Are subject to the provisions of this heading:
1° the drugs for human use referred to in Article 1er the Act of March 25, 1964 on drugs, excluding magisterial preparations and veterinary medicines;
2° Objects, Devices and Substances that pursuant to Article 1erbis of the above-mentioned Act of March 25, 1964, are, in whole or in part, assimilated by the King to drugs and the Minister designates;
3° the raw materials used in master preparations, the list of which is fixed by the Minister.
CHAPTER 2. - Price-fixing decisions
Art. V. 10. § 1er. The ex-factory prices for the sale of new drugs and assimilations referred to in article V.9, 1° and 2°, the rises in ex-factory prices for the sale of existing drugs and assimilations referred to in article V.9, 1° and 2°, as well as the rises in the selling prices of the raw materials referred to in section V.9, 3°, are subject to the prior approval of the Minister.
By new drugs, all medications referred to in Article V.9, 1°, first placed on the market by a holder of the marketing authorization or registration of the drug or by a holder of a parallel import authorization or all objects, devices or substances, as referred to in Article V.9, 2°, which may be assimilated in whole or in part to an importer, put to the market,
The ex-factory selling price means the selling price excluding T.V.A., which is charged to wholesalers, the producer or importer of the drug as referred to in article V.9, 1°, or the selling price excluding T.V.A., which is charged to the competent persons for the issuance, by the manufacturer, importer or distributor of the object, device or substance assimilated.
§ 2. The King determines the conditions for the admissibility of a price or price increase request made by a holder of the marketing or registration of the drug or by a holder of a parallel import authorization of the drug, for drugs referred to in article V.9, 1°, or by a manufacturer, importer or distributor of an object, device or assimilated substance as referred to in article V.9,
If the number of requests is exceptionally high, the deadlines may be extended by the King.
§ 3. The King may exclude certain categories of medicines and assimilations referred to in Article V.9, 1° and 2° from the scope of Chapter 2.
§ 4. The King may prescribe all necessary modalities for the implementation of the provisions of this article.
§ 5. In the absence of a price decision within the time limits set out in § 2, the applicant is entitled to apply the price or increase of the requested price.
§ 6. The King may, by order deliberately in the Council of Ministers, establish the conditions under which the Minister may impose price reductions for drugs and assimilations referred to in article V.9, 1° and 2°, existing.
§ 7. The Minister may issue a delegation for individual price decisions referred to in this section.
Art. V. 11. § 1er. The King may, by order deliberately in the Council of Ministers, decide a total or partial blockage of the prices of all drugs or certain categories of medicines and assimilations referred to in article V.9, 1° and 2°.
§ 2. In the event of a blockage of the prices of the drugs referred to in Article V.9, 1°, for which an intervention of compulsory health care and allowances is provided, the competent ministers for economic affairs and social affairs shall check at least once a year if the macroeconomic conditions justify the continuation of the blockage.
§ 3. Upon request of a holder of the marketing authorization or registration of the drug, for drugs referred to in section V.9, 1°, or of the importer or distributor of assimilated drugs as referred to in section V.9, 2°, the Minister may grant an exemption from price blocking in exceptional cases and provided that particular reasons for profitability that are proven by the applicant justify it.
Art. V. 12. § 1er. The Minister may fix the ex-factory maximum selling price for the classes of medicines and assimilations referred to in section V.9, 1° and 2°, designated by the Minister. These prices may be lower than the prices applied on the date of its decision.
§ 2. The Minister may set maximum margins for the wholesale distribution or dispensation of the drugs and assimilations referred to in section V.9, 1° and 2°, as well as, where applicable, the maximum public selling prices.
For the setting of the maximum distribution margins and the issuance of the drugs referred to in section V.9, 1°, refundable as part of the mandatory health care and allowance insurance, the Minister shall consult with the Minister who has the Social Affairs in his or her duties.
Art. V. 13. The Minister shall consult with the Commission des prix des Médicaments, whose status, composition and operating procedures the King shall determine, and shall consult with the Commission des prix des Médicaments. The Minister also sets out the reasonable time frame for the notice to be given. After this period, the notice is no longer required.
Art. V. 14. § 1er. The holder of the marketing authorization or registration of the drug, or the holder of a parallel import authorization of the drug, for drugs referred to in article V.9, 1°, refundable in the context of compulsory health care and allowance insurance and the company marketing reimbursable implants referred to in section 35, § 1er, from the Schedule to the Royal Order of September 14, 1984 establishing the nomenclature of compulsory health insurance benefits against illness and disability, inserted by the Royal Order of August 24, 1994, are required to communicate, after 1er February and before 1er March of each year at the Federal Public Service Awards Service Economics, P.M.E., Average Classes and Energy, the ex-factory prices outside T.V.A. in the Member States of the European Union designated by the King, by decree deliberately in the Council of Ministers, on the proposal of the Minister of Economy and the Minister of Social Affairs.
§ 2. The holder of the marketing authorization or registration of the drug, or the holder of a parallel import authorization of the drug, for drugs referred to in article V.9, 1°, non-refundable under compulsory health care insurance and allowances, is required to communicate, after 1er February and before 1er March of each year at the Federal Public Service Awards Service Economics, P.M.E., Average Classes and Energy, the ex-factory prices outside T.V.A. in the Member States of the European Union designated by the King by decree deliberately in the Council of Ministers.
§ 3. The Minister may, where appropriate, make an adaptation of the ex-factory prices in Belgium under the conditions and criteria determined by the King, by order deliberately in the Council of Ministers. For the drugs referred to in Article V.9, 1°, refundable under compulsory health care and allowance insurance and for the reimbursable implants referred to in § 1er, the Minister shall communicate to the Minister who has the Social Affairs in his or her duties, the modifications of the ex-factory prices made so that the Minister may adapt the refund bases or refund amounts. »
CHAPTER 3. - Abrogatory and amendments
Art. 6. In the Economic Competition Protection Act, coordinated on September 15, 2006, as amended by the Act of May 6, 2009, are repealed:
1° Articles 1er 37;
2° Articles 39 to 83;
3° articles 86 to 98.
Art. 7. In the programme law of 22 December 1989 are repealed:
1° Article 313;
2° Article 314, amended by the Acts of 20 December 1995, 14 January 2002 and 25 April 2007;
3° articles 315 and 316;
4° Article 316bis;
5° Article 317, amended by the Acts of 20 December 1995 and 25 April 2007;
6° Article 318, amended by the Act of 25 April 2007;
7° Articles 320 to 322.
Art. 8. Articles 1er and 2 of the Act of 27 March 1969 on the Regulation of Maritime and Air Transport are repealed.
Art. 9. In the Act of 22 January 1945 on economic regulation and prices are repealed:
1° Article 1eramended by the Acts of 23 December 1969 and 20 July 2006;
2° Article 2, §§ 2bis and 3;
3° Article 2bis, inserted by the law of 14 January 2002.
Art. 10. Sections 609, 8° and 615, second paragraph, of the Judiciary Code, inserted by the coordinated law of 15 September 2006, are repealed.
Art. 11. The Royal Decree of 31 October 2006 on procedures for the protection of economic competition is repealed.
Art. 12. The Royal Decree of 31 October 2006 on the issue of copies of the file under the Law on the Protection of Economic Competition, coordinated on 15 September 2006, is repealed.
Art. 13. Royal Decree of 31 October 2006 on the introduction of complaints and requests referred to in Article 44, § 1er, 2° and 3°, of the Law on the Protection of Economic Competition, coordinated on 15 September 2006, is repealed.
Art. 14. The Royal Decree of 31 October 2006 on the payment and recovery of administrative fines and penalties provided for by the Law on the Protection of Economic Competition, coordinated on 15 September 2006, is repealed.
Art. 15. The ministerial decision of 31 October 2006 on the mode of transmission of the Competition Council file to the Brussels Court of Appeal is repealed.
Art. 16. The ministerial decision of 31 October 2006 on the mode of transmission of the record of the procedure of the regulatory authority to the Conseil de la concurrence is repealed.
Art. 17. The Royal Decree of 14 December 2006 on the status of the members of the Competition Council Registry is repealed.
Art. 18. The Royal Decree of 21 May 2008 on the terms and program of the professional fitness contest for the appointment of assistant auditors to the Competition Council is repealed.
Art. 19. The Royal Decree of 11 January 2009 approving the Rules of Procedure of the Auditorate of the Conseil de la concurrence is repealed.
Art. 20. In all legal provisions, the words "the Conseil de la concurrence" are replaced by the words "the Belgian Autorité de la concurrence".
In the Orders, Regulations, Circulars and Communications which mention the Conseil de la concurrence, the words "the Conseil de la concurrence" must be read as "the Belgian Autorité de la concurrence".
CHAPTER 4. - Transitional provisions
Art. 21. § 1er. The Auditor General, the auditors and assistant auditors referred to in section 25 of the Law on the Protection of Economic Competition, coordinated on September 15, 2006, are at the time of the repeal of the above-mentioned law transferred ex officio to the federal public service Economie, P.M.E., Average Classes and Energy, within which they are attached to the general management competition with the maintenance of their administrative and financial status.
§ 2. The staff made available by the Federal Public Service Economics, P.M.E., Average Classes and Energie of the Registry of the Council of Competition, referred to in sections 32 and 33 of the Law on the Protection of Economic Competition, coordinated on 15 September 2006, is attached ex officio to the General Directorate competition with the maintenance of its administrative and financial status, during the repeal of the aforementioned law.
Art. 22. § 1er. Proceedings in accordance with the Law on the Protection of Economic Competition, coordinated on 1er July 1999, and the Economic Competition Protection Act, coordinated on 15 September 2006, continue to produce their effects for the application of Book IV of the Economic Law Code.
§ 2. Concerning instructions for which no reasoned report has been filed with the Conseil de la concurrence on the date of entry into force of Title 2, Chapter 1er, section 2 of the above-mentioned book IV, a reasoned draft decision is submitted to the president of the Belgian Autorité de la concurrence in accordance with the terms set out in the above-mentioned book IV.
§ 3. In cases involving restrictive practices in which a substantiated report has already been filed with the Competition Council at the entry into force of Title 2, Chapter 1er, section 2 of Book IV above, the report is retransmitted to the Auditor General, and is considered a communication of the grievances referred to in Article IV.42, § 4 of the Economic Law Code. The procedure is continued as provided for in Article IV.42, § 5, and the following provisions of Book IV of the same Code.
§ 4. In cases involving concentrations in which a substantiated report has already been filed with the Competition Council at the entry into force of Title 2, Chapter 1er, section 2 of Book IV of the Code of Economic Law, the report and the procedural file are submitted to the President of the Belgian Competition Authority, which without delay constitutes a College of Competition. The time limits set by the College of Competition in Article IV.61, § 2, paragraph 2, and Article IV.62, § 6, of the Code of Economic Law begin to run from the date the President receives the report and the file.
Art. 23. The regulatory provisions and sectoral or individual decisions, in accordance with the provisions referred to in sections 6 to 9, remain in force until they are expressly repealed.
Art. 24. The Royal Decree of 8 August 1975 establishing a Pharmaceutical Specialty Awards Commission is considered to be implemented in accordance with Article V.13 of the Economic Law Code.
CHAPTER 5. Attribution of skills
Art. 25. Existing laws or enforcement orders referring to the repealed provisions referred to in sections 6 to 9 are presumed to refer to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 26. The King may replace references in existing laws or decrees to the repealed provisions referred to in sections 6 to 9 with references to the equivalent provisions of the Economic Law Code, as set out in this Act.
Art. 27. The King may coordinate the provisions of the Economic Law Code, as set out in this Act, with the provisions that would have expressly or implicitly amended them at the time the coordination is established.
To this end, He may:
1° amend the order, numbering and, in general, the presentation of the provisions to be coordinated;
2° amend the references contained in the provisions to be coordinated with a view to aligning them with the new numbering;
3° amend the drafting of the provisions to be coordinated in order to ensure their consistency and to unify the terminology without prejudice to the principles set out in these provisions.
CHAPTER 6. - Entry into force
Art. 28. The King shall determine the effective date of this Act.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given at Châteauneuf-de-Grasse, April 3, 2013.
ALBERT
By the King:
Minister of Economy and Consumers,
J. VANDE LANOTTE
Seal of the state seal:
The Minister of Justice,
Ms. A. TURTELBOOM
____
Note
(1) Session 2012-2013.
House of Representatives.
Documents. - Bill, 53-2591 - No. 1. - Amendments, 53-2591 - No. 2. - Report, 53-2591 - No. 3. - Text adopted by the Commission, 53-2591 - No. 4. - Text adopted in plenary and transmitted to the Senate, 53-2591 - No. 5.
Full report. - 28 February 2013.
Senate.
Documents. - Project referred to by the Senate, 5-1997 - No. 1. - Amendments, 5-1997 - No. 2. - Report, 5-1997 - No. 3. - Text corrected by the commission, 5-1997 - No. 4. - Decision not to amend, 5-1997 - No. 5.
Annales of the Senate. - 21 March 2013.
House of Representatives.
Documents. - Bill, 53-2592 - No. 1. - Report, 53-2592 - No. 2. - Text corrected by the commission, 53-2592 - No. 3. - Text adopted in plenary and transmitted to the Senate, 53-2592 - No. 4.
Full report. - 28 February 2013.
Senate.
Documents. - Project transmitted by the House of Representatives, 5-1998 - No. 1. - Report, 5-1998 - No. 2. - Text corrected by commission, 5-1998 - No. 3. - Text adopted in plenary and subject to Royal Assent, 5-1998 - No. 4.
Annales of the Senate. - 21 March 2013.