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10 JUIN 2006. - Act establishing a Competition Council (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 77 of the Constitution.
CHAPTER II. - The Conseil de la concurrence
Section I^re. - General provision
Art. 2. § 1^er. A Competition Council is established. The Board is an administrative jurisdiction that has the jurisdiction of decision and other powers conferred on it by this Act and the Act of 10 June 2006 on the protection of economic competition.
§ 2. The Conseil de la concurrence is composed of:
1st of the General Assembly of the Council;
2° of the Auditorate;
3° of the graft.
§ 3. The Commission has the authority to establish communications regarding the application of this Act or the Act of 10 June 2006 referred to above.
§ 4. The Conseil de la concurrence shall annually transmit to the Minister who has the Economy, referred to below as the "Minister", in his powers and to the Legislative Chambers a report on the application of this Act and the Act of 10 June 2006 referred to above. The Conseil de la concurrence publishes this report.
The decisions and proposals of the Conseil de la concurrence, the decisions of the Court of Appeal of Brussels and the Court of Cassation and the decisions of the Council of Ministers are annexed to this report.
Section II. - Council of Competition advisers
Art. 3. § 1^er. The General Assembly of the Council consists of twelve councillors. The Chair, the Vice-Chair and four full-time counsellors.
§ 2. The King may, by order deliberately in the Council of Ministers, increase the number of advisers.
Art. 4. The President, the Vice-President and Council Advisors shall be appointed by the King by order in Council of Ministers. Their term of office is six years, on the understanding that after three years, the President and the Vice-President shall open their functions. He's renewable.
The Chair and the Vice-Chair justified their knowledge of the Dutch language and the French language.
Councillors continue to exercise their mandate until they have been replaced, except as provided for in Article 9, § 3.
Art. 5. No one can be appointed adviser if he is not a master's degree.
Art. 6. § 1^er. The president and vice-president hold a French-language diploma for one of the two and Dutch for the other.
Half of the advisors hold a degree in French and the other half in Dutch.
The Chair, Vice-Chair and Councillors justify the functional knowledge of the English language.
An advisor at least justifies a functional knowledge of the German language.
A maximum of three quarters of advisors may have a degree of the same discipline.
§ 2. Judges may be appointed to the Competition Council, in accordance with Article 323bis of the Judicial Code.
Art. 7. To be appointed president, vice-president or adviser within the meaning of Article 3, § 1^er, the candidate 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.
Art. 8. The treatment of advisers is as follows:
1° The President and Vice-President of the Council receive a treatment equal to 90% of the treatment of the first President of the Council of State; they also receive the related increases and benefits.
2° Other full-time counsellors receive treatment equal to 90 per cent of the treatment of a state councillor; they also receive the related increases and benefits.
3° Advisors who do not exercise their full-time mandate receive equal treatment to the 2° prorated benefit, but may not exceed 50 percent of the amount referred to in 2°.
The laws relating to the pension system of the civil personnel of the State and their beneficiaries are also applicable to the members of the Conseil de la concurrence who do not have the status of a magistrate or agent of the State and who exercise their full-time functions.
Art. 9. § 1^er. Any advisor shall inform the President of the interests that he or she holds or acquires and of the functions that he or she has exercised or performs in an economic activity.
§ 2. Counselors may be challenged for the causes set out in section 828 of the Judicial Code.
Any counsellor who knows cause of recusal in his person abstains.
The application for recusal is filed by a reasoned request filed at the Registry. 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 clerk to the disqualified counsel.
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 general assembly of the Council shall decide on it in the absence of the counsel in question. The applicant and the counsellor in question are heard.
In this case, the decision of the General Assembly of the Council is not subject to appeal.
§ 3. The King shall replace an adviser if the latter:
1° is physically or mentally incapacitated;
2° shall exercise a public mandate conferred by election;
3° resigns or has to resign as a result of incompatibility.
Art. 10. The Council is divided into rooms, each composed of three advisers. The General Assembly of the Council annually sets out the composition of the rooms and selects the chairs within them.
The President of the Council distributes business between the chambers.
Art. 11. Each board of the Council and the chair or adviser that it delegates in the event of interim measures shall decide by reason of a decision on all matters before them, having heard in their capacity the persons concerned and, at their request, the prospective complainants, or the board of their choice.
Art. 12. The Competition Council participates in meetings between jurisdictional authorities. Participation in other European and international meetings is subject to the Minister's prior authorization.
Section III
From the General Assembly of the Conseil de la concurrence
Art. 13. The General Assembly of the Council consists of the President, Vice-President and Councillors. It is presided over by the President or, if not, by the Vice-President or, if not, by the oldest or equal seniority, by the oldest room chair or, if any, by the advisers present.
The Auditor General is summoned to all general assemblies. He is heard at his request.
The Council's general meeting can only be held on a regular basis when at least half of the members of the Dutch-speaking linguistic role and half of the members of the Francophone linguistic role are present. When the quorum is not reached, a new assembly is convened with the same agenda items. This second meeting may regularly decide on these items regardless of the number of members present.
The General Assembly of the Council shall decide by a simple majority of the votes cast. In the event of a vote sharing, the voice of the president of the assembly is preponderant.
Art. 14. When the President of the Conseil de la concurrence considers that in order to ensure the unity of case law, a case must be dealt with in a general assembly, he or she orders the referral to that assembly.
Art. 15. The rules of procedure are stopped by the General Assembly, the Auditor General being heard. It is approved by the King.
Section IV. - Student
Art. 16. A Auditorate, composed of a minimum of six and a maximum of ten members, being the Auditor General and the assistant auditors or auditors, is established with the Conseil de la concurrence.
The Auditor General, auditors and assistant auditors shall exercise in college the competence of the Auditorate and each of them may exercise the competence of the auditors defined in this Act and in the Act of 10 June 2006.
The deputy auditors are appointed by the King among the winners of a professional fitness contest whose terms and program are fixed by the King.
They must be a master's degree holder and justify a functional knowledge of French, Dutch and English.
A maximum of three quarters of the members of the Auditorate may have a degree of the same discipline.
Half of the members of the Auditorate have a Master's degree in French and the other half in Dutch.
A member of the Auditorate at least provides proof of the functional knowledge of the German language.
Art. 17. The King appoints the Auditor General from among the auditors or default among the assistant auditors, for a renewable term of six years, on the advice of the General Assembly of the Conseil de la concurrence.
Auditors are appointed by the King among the deputy auditors who have six years of office at the Auditorate.
Art. 18. The Auditor General distributes business between the members of the Auditorate and directs their work.
Members of the Auditorate are placed under the authority of the Auditor General.
Art. 19. The treatment of members of the Auditorate is as follows:
1° Auditor General: the pecuniary regime applicable to the first chief auditors of section of the Council of State;
2° auditor: the financial regime applicable to the auditors of the State Council;
3rd deputy auditor: the monetary regime applicable to deputy auditors of the Council of State.
Members of the Auditorate are subject to the regulations applicable to State officials, unless this Act expressly derogates from them.
Art. 20. § 1^er. The auditors are responsible for:
1° to receive complaints and requests for interim measures relating to restrictive competition practices, as well as notifications of concentrations;
2° to direct and organize the instruction and to ensure the execution of the decisions taken by the Conseil de la concurrence;
3° to issue to officials of the Competition Service the orders of mission, including those referred to in Article 22, § 3, paragraph 8, of the Act of 10 June 2006 referred to above;
4° to establish and file the motivated report to the Conseil de la concurrence;
5° to classify complaints and requests for interim measures;
6° 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 Competition Service or the Auditorate during the proceedings;
7° to request the reference of a concentration to the Belgian Autorité de concurrence referred to in Article 2, 4°, of the above-mentioned Act of 10 June 2006 and to return a concentration to the European Commission pursuant to Articles 4 and 9, on the one hand, and Article 22, on the other hand, of Regulation (EC) No 139/2004 of the Council of the European Union of 20 January 2004 concerning the control of concentrations between companies;
8° to apply section 39 of the Act of 10 June 2006 referred to above.
The Auditor General shall preside over the meetings of the Auditorate, with the exception of the meetings that have the purpose of determining the priorities of the policy for the implementation of the law and establishing the order for the processing of files introduced under section 22 of the Act of 10 June 2006 referred to above. These last meetings are chaired by the Chief Competition Officer. In the event of absence or incapacity, the general auditor is replaced by the oldest listener or, in the event of seniority parity, by the oldest listener.
§ 2. Auditors may perform all acts relating to the performance of their duties, except where the law reserves these acts to the Auditorate. In this case, the Auditorate deliberates by a simple majority of the votes cast; in the event of a voice-sharing, the voice of the Auditor General is preponderant.
Without prejudice to section 18, auditors may not request or accept any injunctions regarding the processing of files filed under section 22, § 1^erthe Act of 10 June 2006 referred to above, or their position in the meetings of the Auditorate which are aimed at the determination of the priorities of the policy of implementation of the law and the setting of the order of processing of records.
§ 3. When the Auditorate decides to open an instruction under Article 22, § 1^er, the Act of 10 June 2006 referred to above, the officer of the Competition Service shall, in consultation with the Auditor General, designate the officials of this Service who make up the training team.
Officials who are assigned to an instruction team may only receive injunctions from the auditor who directs this instruction.
§ 4. The Auditorate stops its rules of procedure, which, after the advice of the General Assembly of the Council, is approved by the King.
Art. 21. § 1^er. Auditors may be challenged for the causes set out in section 828 of the Judicial Code.
Any listener who knows cause of recusal in his person abstains.
The application for recusal is filed by a reasoned request filed at the Registry. 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 twenty-four hours by the clerk to the discused auditor.
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 objection is contested, the General Assembly of the Council shall rule on it in the absence of the auditor in question. The applicant and the auditor in question are heard.
In this case, the decision of the General Assembly of the Council is not subject to appeal.
§ 2. Members of the Auditorate are eligible for retirement when a severe and permanent infirmity no longer allows them to perform their duties properly or when they have reached the age of sixty-five years.
Section V. - Discipline
Art. 22. Any advisor to the Conseil de la concurrence and any member of the Auditorate near the Conseil de la concurrence may be declared to be dismissed or suspended in accordance with article 615, paragraph 2, of the Judicial Code.
The President of the Conseil de la concurrence may apply to counselors and members of the Auditorate, on a reasoned basis, a reminder of order, a blame or a deduction of treatment as a disciplinary penalty.
Section VI. - Registry
Art. 23. A Registry of the Competition Council shall be established with the Competition Council.
The Registry is placed under the functional authority of the Registrar.
The Clerk shall serve under the direction of the President of the Council.
The clerk is assisted by an assistant clerk.
The General Assembly of the Conseil de la concurrence establishes the regulation of the registry.
Art. 24. The Clerk and Deputy Clerk are appointed by the King as a staff member of the Federal Public Service Economics, P.M.E., Average Classes and Energy. They are holders of the Master's degree in the French language for one and in the Dutch language for the other.
The King determines the status of the Clerk and Deputy Clerk.
CHAPTER III
Prejudicial issues raised at the Court of Cassation
Art. 25. The Court of Cassation shall rule on matters relating to the interpretation of this Act or the Act of 10 June 2006 as a preliminary ruling.
Art. 26. § 1^er. Where the solution of a dispute depends on the interpretation of this Act or the Act of 10 June 2006, referred to above, the jurisdiction, including the Conseil de la concurrence, may suspend to decide and raise a preliminary question to the Court of Cassation.
The decision to ask a preliminary question to the Court of Cassation suspends the time limits and the procedure before the court that raises it from the day the decision was taken to the day the court before it receives the response from the Court of Cassation.
The judge's decision to ask or not to ask a preliminary question is not subject to appeal.
§ 2. The Clerk near the Court of Cassation shall forthwith bring the preliminary matter to the attention of the parties, the Conseil de la concurrence, the Minister and, in the event of the application of Articles 81 and 82 of the Treaty establishing the European Community, the European Commission.
The Clerk near the Court of Cassation invites the parties, the Minister and the European Commission to make their written comments in the month of the notification of the preliminary matter, barely irreceivable.
§ 3. They may each request to be heard and consult the procedural file without displacement or request a copy to be sent to them.
When the preliminary question is asked by the Conseil de la concurrence, the auditor who examines, before the Conseil de la concurrence, the matter in which the matter is raised, is invited by the clerk to the Court of Cassation to file his observations in accordance with the terms set out in § 2, paragraph 2.
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. 27. Any judgment or judgment rendered by the courts and tribunals relating to a dispute involving the legality of a competition practice within the meaning of the Act of 10 June 2006 referred to above, shall be communicated to the Competition Service, the Conseil de la concurrence, the Federal Public Service Chancellery and, as long as the judgment or judgment relates to the application of European competition law, the European Commission in the eighty and the due diligence of the Registrar of the Judiciary of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of the Court of
In addition, the Registrar shall promptly inform the Competition Service and the Competition Council of appeals against any judgement or judgment referred to in the preceding paragraph.
CHAPTER IV. - Appeals
Art. 28. The decisions of the Conseil de la concurrence and its President, as well as the tacit decisions on the admissibility of concentrations by discharge of the time limits referred to in sections 36 and 37 of the Act of 10 June 2006, referred to above, may be appealed to the Court of Appeal of Brussels, except where the Conseil de la concurrence decides under section 32.
The Court of Appeal ruled with full jurisdiction over alleged restrictive practices as referred to in the above-mentioned Act of 10 June 2006 and, where applicable, on the sanctions imposed and on the admissibility of concentrations. The Court of Appeal may take into account developments since the Council's appealed decision.
The Court of Appeal may impose fines and fines in accordance with the provisions referred to in Section VIII of Chapter V of the Act of 10 June 2006 referred to above.
Art. 29. § 1^er. No separate appeal may be made, the decisions by which the Conseil de la concurrence refers the matter to the auditor.
§ 2. The remedies provided for in section 28 may be brought by the parties in question before the Council, by the complainant and by any person justifying an interest in accordance with section 26, § 2, of the Act of 10 June 2006 referred to above or section 35, § 2, of the Act and having requested the Council 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 Competition Council.
The appeals shall be lodged, in the event of an ex officio invalidity, by a petition signed and filed with the Registry of the Court of Appeal of Brussels within thirty days of the notification of the decision.
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 was notified within the meaning of section 45 of the Act of 10 June 2006 referred to above;
5° the statement of means;
6° the indication of the place, day and time of the appearance fixed by the court of appeal;
7° the signature of the applicant or his lawyer.
Within five days after the filing of the application, the appellant shall, as soon as the appeal is null and void, send a copy of the request by registered letter to the position with acknowledgement of receipt, to the parties to whom the decision under appeal has been notified, as well as to the notice letter provided for in section 45 of the above-mentioned Act of 10 June 2006 to the Conseil de la concurrence and to the Minister, if not the applicant.
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 to the Competition Council when the main appeal or incident may affect their rights or charges.
The Court may request the Auditorate to the Conseil de la concurrence to conduct an investigation and to provide the Court with its report. In this case, the Auditorate has the powers of instruction provided for in Section 1 of Chapter V of the Act of 10 June 2006 referred to above.
The Brussels Court of Appeal sets out the time limit for parties to submit their written submissions and file them to the Registry.
The Minister may file his written submissions to the Court of Appeal in Brussels and consult the file with the Registry without movement. 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.
§ 3. The Registry of the Court of Appeal of Brussels requests the Registry of the Conseil de la concurrence, within five days of the registration of the case to the role, the sending of the case file. The transmission is made within five days of receipt of the request. The Minister regulates the mode of transmission of the file.
§ 4. The appeal does not suspend the decisions of the Council or those of its President.
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 execution of the decision of the Conseil de la concurrence or its President until the day of the judgment.
Suspension of enforcement can only be ordered if serious means that can justify the annulment of the appealed decision are invoked and provided that the immediate execution of the decision may cause a serious injury that is difficult to repair.
The Court of Appeal may, if any, order the restitution to the person concerned of the amount paid fines and charges. It may also not immediately decide on the restitution of fines or charges.
§ 5. The Court of Appeal ensures that the confidentiality of the file transmitted by the Commission is maintained throughout the proceedings before the Court.
Art. 30. § 1^er. The parties concerned may apply for annulment before the Council of State against the decisions of the Council of Ministers on concentrations.
The appeal shall be filed at the Registry of the Council of State, by request, within thirty days of the notification.
§ 2. The request contains no invalidity:
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;
3° if the applicant is a legal entity, its name, legal form, head office and the quality of the person or body representing it, as well as, where applicable, its business number;
4° the reference to the decision against which the appeal is brought;
5° where applicable, the names, names, domiciles or, failing that, the residence or name, the legal form and the head office of the parties to whom the decision has been notified;
6° the waiver of grievances;
7° the signature of the applicant or his lawyer.
§ 3. The appeal does not suspend decisions that are the subject of appeal.
The Minister may, on behalf of the Council of Ministers, file his written comments to the Council of State. He may consult the file in the registry without displacement.
The Council of State shall decide on the concentration of all ceaseless cases.
The Council of State controls the legality of decisions that are the subject of appeal.
In the event of a cancellation of the decision under appeal, the Council of Ministers shall be granted a new time limit to decide. This period is equivalent to that provided for in section 38 of the Act of 10 June 2006 referred to above. It takes place from the notification of the decision to cancel the Council of State.
For the surplus, the rules relating to the procedure before the administrative section of the State Council are applicable. The King may derogate from these procedural rules by order deliberately in the Council of Ministers.
Art. 31. The appeals against the judgments rendered by the Court of Appeal under this chapter may also be brought by the Minister, without the Minister having to justify an interest and without being a party to the Competition Council or the Brussels Court of Appeal.
CHAPTER V
Appeals against decisions of sectoral regulatory authorities
Art. 32. In the cases determined by law, the Conseil de la concurrence has recourse to decisions rendered by the regulatory sectoral authorities.
Art. 33. § 1^er. Appeals shall be lodged, in a matter of ex officio nullity, by a request signed and filed at the Registry of the Conseil de la concurrence, within thirty days of the notification of the decision, or for other interested persons, within thirty days of the publication of the decision or, in the absence of publication, of the decision. The request is filed in the Registry as many copies as there are parties involved.
In case of invalidity, the request contains:
1° the indication of day, month and year;
2° if the applicant is a natural person, name, name, occupation and domicile; 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° the statement of means;
5° the signature of the applicant or his lawyer.
The Registry of the Conseil de la concurrence shall notify the request, by registered letter, within the time limits and the form provided for in section 1056 of the Judicial Code to the parties to whom the decision was notified, and to the Minister if it is not the appellant.
§ 2. An incident appeal may be lodged. It is admissible only if it is introduced in the month of receipt of the letter provided for in § 1^erParagraph 3.
The President of the Conseil de la concurrence sets the time limit for parties to submit their written comments and file a copy of them at the Registry. It also sets the date for discussion.
The Minister and the appropriate minister for the sector concerned may file their written submissions to the Competition Council Registry and consult the file with the Registry without movement or obtain a copy thereof. The President of the Competition Council sets the deadlines for the production of these comments. They are brought to the attention of the parties by the registry.
§ 3. The Commission's Registry requests the regulatory authority within five days of the introduction of the appeal, to send the record of the procedure. The transmission is made within five days of receipt of the request. The Minister regulates the mode of transmission of the file.
§ 4. The appeal does not suspend the decisions of the regulatory sectoral authority.
The Conseil de la concurrence may, however, at the request of the interested party and by decision before the right, suspend, in whole or in part, the decision of the regulatory authority.
§ 5. The King sets the rules of procedure before the Council.
CHAPTER VI. - Cases for decisions of the Conseil de la concurrence
Art. 34. The Court of Cassation shall rule on the appeals in cassation of the decisions rendered by the Conseil de la concurrence pursuant to section 32.
The Conseil de la concurrence, referred by reference of the Court of Cassation, complies with the decision of the Court of Cassation on the point of law that it has tried.
The appeals are filed according to the forms and deadlines of the cassation appeals against the decisions of the State Council.
CHAPTER VII
Provisions amending the Judicial Code
Art. 35. Section 609 of the Judicial Code, amended by the Act of 23 December 1986 and the Royal Decree of 20 July 2000, is supplemented as follows:
"8° of the decisions of the Conseil de la concurrence rendered pursuant to section 32 of the Act of 10 June 2006 establishing a Conseil de la concurrence. »
Art. 36. Section 615 of the Judicial Code is supplemented by the following paragraph:
"Every adviser to the Conseil de la concurrence and any member of the Auditorate close to the Conseil de la concurrence who has lacked the dignity of his or her duties may, as the case may be, be declared to be dropped or suspended from his or her duties by judgment rendered by the first Chamber of the Court of Cassation on the request of the Attorney General to this Court. »
CHAPTER VIII. - Final provision
Art. 37. This Act comes into force on the first day of the fourth month following the one in which it was published in the Belgian Monitor.
Promulgation of this law, let us order that it be clothed with state seal and published by the Belgian Monitor.
Given in Brussels on 10 June 2006.
ALBERT
By the King:
Minister of Economy,
Mr. VERWILGHEN
The Minister of Justice,
Ms. L. ONKELINX
The Minister of the Interior,
P. DEWAEL
Minister of Average Class,
Mrs. S. LARUELLE
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) Session 2005-2006.
House of Representatives:
Documents. - Text adopted in plenary and transmitted to the Senate, 51-2426 - No. 1.
Full report. - 30 March and 20 April 2006.
Senate:
Documents. - Project transmitted by the House of Representatives, 3-1665 - No. 1. - Report, 3-1665 - No. 2. - Text adopted in plenary and subject to Royal Assent, 3-1665 - No. 3.
Annales. - 4 May 2006.