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Law On The Inclusion Of The Provisions Regulating Substances Referred To In Article 77 Of The Constitution, In Book Iv 'protection Of Competition' And V 'competition And Price Developments' Book Of The Code Of Law Economics (1)

Original Language Title: Loi portant insertion des dispositions réglant des matières visées à l'article 77 de la Constitution, dans le livre IV « Protection de la concurrence » et le livre V « La concurrence et les évolutions de prix » du Code de droit économique (1)

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3 AVRIL 2013. - An Act to insert the provisions regulating the substances referred to in Article 77 of the Constitution, in Book IV "Protection of competition" and Book V "Competition and price changes" of the 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 77 of the Constitution.
CHAPTER 2. - The Economic Law Code
Art. 2. In title 2, chapter 1er, section 1re, of Book IV of the Economic Law Code, inserted by the Act of 3 April 2013 concerning the insertion of Book IV "Protection of competition" and Book V "Competition and price changes" in the Economic Law Code and inserting the definitions specific to Book IV and Book V and the provisions of the law specific to Book IV and Book V, in Book I of the Economic Law Code, it is inserted as follows:
"Subsection 5. - Recusal and discipline »
Art. 3. In subsection 5, inserted by section 2, an article IV.32 is inserted, as follows:
"Art. IV.32. The President, the Vice-President or Assessors appointed for a case, the Auditor General and the auditors designated by him may be challenged for the causes set out in section 828 of the Judicial Code.
Whoever knows cause of recusal in his person abstains.
The application for recusal is filed by a reasoned request filed with the Student Secretariat. It contains the means and is signed by the party or its agent with a special power of attorney, which is annexed to the request.
The request for recusal shall be submitted within 24 hours by the secretariat to the recused person.
The latter shall give to the bottom of the request, within two days, its written statement bearing or acquiescence to the recusal, or its refusal to abstain, with its answers to the means of recusal.
If the recusal is contested, the Brussels Court of Appeal decides on it in the absence of the person in question. The applicant and the respondent are heard.
In this case, the decision of the Court of Appeal is not subject to appeal. »
Art. 4. In the same subsection 5, an article IV.33 is inserted, as follows:
"Art. IV.33. The Brussels Court of Appeal may, in a reasoned manner, impose a reminder of order, a reprimand or a deduction of treatment as a disciplinary sanction to the President, the Vice President, the assessors, the Auditor General and the directors of economic and legal studies. The court may also declare them lost or suspended from their duties. »
Art. 5. Section 7 of Title 2, Chapter 1er, section 1refrom Book IV of the same code, an article IV.37 is inserted, as follows:
"Art. IV.37. § 1er. The functions of President, Auditor General, Director of Economic and Legal Studies and Staff of the Belgian Competition Authority are incompatible with judicial functions, with the exercise of a public mandate conferred by election to a level different from the local or provincial level, with any civil service or civil service paid in a political or administrative manner, with the duties of notary and judicial officer, with the profession of a lawyer, with the public office
§ 2. The function of a Vice-President or assailant is incompatible with the exercise of a public mandate conferred by election at any other level than the local or provincial level, with any paid public office or office of political or administrative order with the exception of charges in higher education institutions, with the charges of notary and judicial officer, with the military state and with the function of a minister of a recognized cult.
§ 3. It cannot be derogated from paragraphs 1er and 2:
1° that when it comes to the exercise of the functions of professor, lecturer, lecturer or assistant in higher education institutions, provided that these functions do not last for more than two half days a week;
2° that when it comes to the exercise of functions as a member of an examination board;
3° that when it comes to participation in a commission, board or advisory committee, provided that the number of missions or functions is limited to two and that they are unpaid charges or duties.
These exemptions are granted by the President or, if the application is concerned, by the President of the Brussels Court of Appeal. »
Art. 6. In title 2 of Book IV of the same Code, a chapter 2, which reads as follows:
"Chapter 2. - Prejudicial questions posed to the Court of Cassation and interventions as amicus curiae »
Art. 7. In chapter 2 of Book IV, title 2, of the same Code, inserted in article 6, an article IV.75 is inserted, as follows:
"Art. IV.75. The Court of Cassation shall rule on matters relating to the interpretation of the rules contained in this book in a court-ordered manner. »
Art. 8. In the same chapter, an article IV.76 is inserted, as follows:
"Art. IV.76. § 1er. Where the solution of a dispute depends on the interpretation of the rules contained in this book, the court seized may suspend to decide and ask a preliminary question to the Court of Cassation.
The decision to ask a preliminary question to the Court of Cassation suspends the deadlines and the procedure before the court that raises it from the day the decision was taken to the day the court seized receives the response from the Court of Cassation.
The decision of this court to ask or not to ask a preliminary question is not subject to any appeal.
§ 2. The Clerk near the Court of Cassation shall forthwith bring the preliminary matter to the attention of the parties, the Belgian Competition Authority, the Minister and, in the case of application of Articles 101 and 102 of the Treaty on the Functioning of the European Union, the European Commission.
The Clerk near the Court of Cassation invites the parties, the Belgian Competition Authority, the Minister and the European Commission to make their written comments in the month of the notification of the pre-trial issue, barely being admissible.
§ 3. They may each request to be heard and consult the procedural file without displacement or request a copy to be sent to them.
The Court may rephrase the preliminary issue. The Court makes a reasoned decision. The Court ruled all cases.
§ 4. The court that has asked the preliminary question, as well as any jurisdiction that is to be decided in the same case, is obliged, for the solution of the dispute in which the question was raised, to comply with the decision of the Court of Cassation. »
Art. 9. In the same chapter, an article IV.77 is inserted, as follows:
"Art. IV.77. The Belgian Autorité de la concurrence may, on its own motion or at the request of the seized court, within the time limits set by the seized court, submit written comments on the application of Articles IV.1 and IV.2 or Articles 101 and 102 of the Treaty on the Functioning of the European Union.
With the authorization of the court seized, she may also make oral observations.
In order to allow it to make its observations, and for this purpose only, the Belgian Autorité de la concurrence may apply to the court seized so that it may transmit or transmit any necessary documents to the judgment of the case.
When the Belgian Competition Authority makes submissions, the other parties must have the opportunity to respond to these observations. »
Art. 10. In the same chapter, an article IV.78 is inserted, as follows:
"Art. IV.78. Any judgment or judgment rendered by courts and tribunals and relating to a dispute involving the legality of a competition practice within the meaning of this book, shall be communicated to the Belgian Competition Authority and, as long as the judgment or judgment relates to the application of European competition law, to the European Commission in the eightaine and to the diligence of the Registrar of the competent jurisdiction.
In addition, the Registrar shall promptly inform the Belgian Authority of the competition of appeals against any judgement or judgment referred to in the preceding paragraph. »
Art. 11. In title 2 of Book IV of the same Code, a chapter 3 is inserted, as follows:
"Chapter 3. - Appeals »
Art. 12. In chapter 3 of title 2 of Book IV of the same Code, inserted in article 11, an article IV.79 is inserted, as follows:
"Art. IV.79. § 1er. The decisions of the College of Competition or Auditor referred to in Articles IV.47, IV.48, IV.50, IV.61, § 1, 1° in 2°, in § 2, 1° in 2°, IV.62 § 6, IV.63, § 3 and IV.64 as well as the tacit decisions of admissibility of concentrations by flow of the deadlines set out in Articles IV.61 and IV.62 and of withdrawal of an application for measures
The decisions of the Auditorate regarding the use in an instruction of the data obtained in connection with a search referred to in Article IV.41, § 3, paragraph 4, may also be appealed to the Court of Appeal of Brussels after the communication of the grievances referred to in Article IV.42, § 4 and Article IV.59, paragraph 1er, and as long as these data have been effectively invoked to support grievances.
The other decisions of the College of Competition, Auditorship or auditor are the subject of the sole remedy provided for in this book, without prejudice to the possibility of using any means in an appeal proceedings before the Court of Appeal of Brussels referred to in this paragraph.
§ 2. The Court of Appeal of Brussels shall rule, according to the procedure as referred, in law and in fact on the case submitted by the parties.
The court shall rule, except in the cases referred to in the third paragraph, with full jurisdiction, including the jurisdiction to substitute the decision under appeal.
In cases involving the admissibility of concentrations or conditions or charges imposed by the College of Competition, as well as cases in which the court finds, contrary to the decision under appeal, an offence under sections 101 or 102 TFEU, the Court shall rule only on the decision under appeal with a waiver jurisdiction.
The appeal does not suspend the decisions under attack.
The Court of Appeal may, however, at the request of the interested party and by decision before the right, suspend, in whole or in part, the performance of the College of Competition decision until the day the decision is pronounced.
The suspension of the execution can only be ordered if serious means that can justify the annulment of the decision under appeal are invoked and provided that the immediate execution of the decision may have serious consequences for the person concerned.
The Court of Appeal may, if any, order the restitution to the person concerned of the amount paid fines.
§ 3. An appeal may be brought before the Brussels Court of Appeal by each party concerned by the decision under appeal. The appeal may also be brought by any person justifying interest in accordance with Article IV.45, § 5, or Article IV.60, § 2, and having requested the College of Competition to be heard. The appeal may also be brought by the Minister without the Minister having to justify interest and without being represented before the College of Competition.
§ 4. The appeals shall be lodged, only if the Belgian Competition Authority is inadmissible by application signed and filed with the Court of Appeal in Brussels within thirty days of the notification of the decision under appeal.
In case of invalidity, the request contains:
1° the indication of day, month and year;
2° if the applicant is a natural person, its name, name, occupation and domicile, and, where applicable, its business number; if the applicant is a legal entity, its name, legal form, head office and the quality of the person or body representing it, and, where applicable, its business number; if the appeal is made by the Minister, the name and address of the service that represents it;
3° the reference to the decision being appealed;
4° a list of names, qualities and addresses of the parties to whom the decision has been notified;
5° the statement of means;
6° the indication of the place, day and hour of the appearance fixed by the court of appeal of Brussels;
7° the signature of the applicant or his lawyer.
Within five days after the filing of the request, the appellant must, in a matter of nullity of the appeal, send a copy of the request by registered letter with acknowledgement of receipt, to the Auditorate Secretariat, which shall inform the President and the Auditor General of the request, and to the parties to which the decision under appeal has been notified, as indicated in the notice letter, as well as to the Minister, if not the applicant.
§ 5. An incident appeal may be lodged. It is admissible only if it is introduced in the month of receipt of the letter referred to in the preceding paragraph.
However, the incident call cannot be admitted if the main appeal is declared null or late.
At any time, the Brussels Court of Appeal may, on its own, call to the case persons who were parties in the proceedings that led to the decision under appeal when the main appeal or incident may affect their rights or charges. The court may request the Belgian Competition Authority to communicate the procedural file and other documents filed with the Competition College during the proceedings.
The Minister concerned may file his written submissions to the Court of Appeal in Brussels and consult the file with the Registry without displacement. The Brussels Court of Appeal sets the deadlines for the production of these observations. They are brought to the attention of the parties by the registry.
§ 6. In the event that a fine decision is not cancelled, interest is due from the date of the decision under appeal. »
Art. 13. In Book V of the same Code, inserted by the Act of 3 April 2013 on the insertion of Book IV "Protection of competition" and Book V "Competition and price developments" in the Code of Economic Law and incorporating 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 of the Economic Law Code, article V.5 is inserted, as follows:
"Art. V.5. § 1er. An appeal may be brought before the Brussels Court of Appeal by any party concerned or by any organization heard under Article V. 4 and by any person warranting an interest.
This remedy is introduced in the forms prescribed by Article IV. 79, § 4, paragraph 1er and 2.
In the event of an appeal, the College of Competition shall forthwith communicate its decision and all supporting documents to the Brussels Court of Appeal, which confirms, amends or cancels the College of Competition decision and determines the conditional or temporary nature of its decision.
This decision of the Court of Appeal is taken within six months of the decision of the College of Competition.
§ 2. The Court of Appeal may, at the request of the appellant referred to in paragraph 1er, and by decision before declaring right, suspend, in whole or in part, the execution of the interim measures referred to in Article V.4, § 1er, until the day of the pronouncement of the judgment.
If, in accordance with Article V.4, § 2, the College of Competition decides that the interim measures are of immediate application, an appeal may be filed and is suspensive.
The suspension of the execution can only be ordered if serious means that can justify the annulment of the decision under appeal are invoked and provided that the immediate execution of the decision may have serious consequences for the person concerned.
The decisions of the College of Competition referred to in Article V. 4 and the Brussels Court of Appeal referred to in Article V. 5, § 1er and 2, may be published to the Belgian Monitor and on the website of the Belgian Autorité de la concurrence. »
CHAPTER 3. - Entry into force
Art. 14. The King shall determine the effective date of this Act.
Promulgation of this law, let us 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) Documents of the House of Representatives:
53-2592 - 2012/2013:
Number 1: Bill.
Number two: Report.
Number 3: Text corrected by commission.
No. 4: Text adopted in plenary and transmitted to the Senate.
Full report: 28 February 2013.
Documents of the Senate:
5-1998 - 2012/2013:
No. 1: Project transmitted by the House of Representatives.
Number two: Report.
Number 3: Text corrected by commission.
No. 4: Text adopted in plenary and subject to Royal Assent.
Annales du Senate: March 21, 2013.
Documents of the House of Representatives:
53-2591 - 2012/2013:
Number 1: Bill.
No. 2: Amendments.
Number three: Report.
No. 4: Text adopted by the commission.
No. 5: Text adopted in plenary and transmitted to the Senate.
Full report: 28 February 2013.
Documents of the Senate:
5-1997 - 2012/2013:
Number 1: Project referred to by the Senate.
No. 2: Amendments.
Number three: Report.
No. 4: Text corrected by the commission.
No. 5: Decision not to amend.
Annales du Senate: March 21, 2013.