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Law On The Protection Of Economic Competition (1)

Original Language Title: Loi sur la protection de la concurrence économique (1)

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belgiquelex.be - Carrefour Bank of Legislation

10 JUIN 2006. - Economic Competition Protection Act (1)



ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER Ier. - General provision
Article 1er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Definitions
Art. 2. For the purposes of this Act:
1st business: any natural or legal person who pursues a sustainable economic purpose;
2° dominant position: the position allowing 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;
3rd Minister: Minister who has the Economy in his powers;
4° Belgian Competition Authority: the Conseil de la concurrence and the Competition Service to the Federal Public Service Economy, P.M.E., Average Classes and Energy, each acting according to its competences defined in this Act.
The Belgian Competition Authority is the competent competition authority for the application of Articles 81 and 82 of the Treaty establishing the European Community, 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 81 and 82 of the Treaty.
CHAPTER III. - Competition practices
Section 1re. - Restrictive competition practices
Art. 3. § 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 § 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.
Art. 4. It is forbidden, without a prior decision to this effect, the fact for one or more companies to improperly exploit a dominant position on the 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. 5. The practices referred to in Article 3, § 1er, and section 4 are described below as restrictive competition practices.
Art. 6. Prohibition of Article 3, § 1er, does not apply to agreements, decisions of joint venture associations and practices for which Article 81, paragraph 3, of the EC Treaty 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 3, § 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 within the meaning of paragraph 1, in the case that they would have affected or restricted, prevented or infringed such competition.
Prohibition of Article 3, § 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 28.
Section II. - Concentrations
Art. 7. § 1er. For the purposes of this Act, a concentration is achieved when a sustainable change in control results in:
1° of 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 creation 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 § 1erTwo.
§ 3. For the purposes of this Act, 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 opportunity to exert a decisive influence on the activity of a business, 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. 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 § 1er is not realized:
1° where credit institutions, other financial institutions or insurance companies, whose normal activity includes the transaction and the negotiation of securities on behalf of 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 exercise the voting rights attached to such participations in order to determine the behavior
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 § 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 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. 8. § 1er. The provisions of this section apply only when the companies concerned aggregate together in Belgium a turnover, determined according to the criteria set out in Article 52, of more than 100 million euros, and that at least two of the companies concerned each achieve 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 General Assembly of the Council and the Competition Commission, increase the thresholds referred to in § 1er.
§ 3. Every three years, the General Assembly of the Council shall conduct an assessment of the thresholds referred to in § 1er, taking into account, inter alia, the economic impact and administrative burden on businesses.
The Auditorate shall give notice to the General Assembly of the Council for this evaluation.
Art. 9. § 1er. Concentration operations are subject to the prior approval of the Chamber seized by the Conseil de la concurrence, as referred to in the Commission's Chamber, which determines whether or not they are eligible.
§ 2. To make the decision referred to in § 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 the Kingdom;
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 result in effective competition being significantly hampered in the Belgian market or a substantial part of the market, including by creating or strengthening a dominant position, are declared eligible.
§ 4. Concentration operations that have the consequence that effective competition would be significantly hampered 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 7, § 2, is or is the result of the coordination of the competitive behaviour of companies that remain independent, this coordination is appreciated according to the criteria of Article 3, with a view to determining 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.
§ 6. Where the general interest so warrants, the Council of Ministers may authorize, on its own motion or at the request of the parties, a concentration declared inadmissible by the Council, in accordance with the terms referred to in Article 38.
Art. 10. § 1er. The concentrations referred to in this Act shall be notified to the Auditorate 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 that they explicitly declare 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 7, § 1er, 1°, or in the acquisition of common control within the meaning of Article 7, § 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. The terms of the notification referred to in § 1er are fixed by the King. The General Assembly of the Council may set the specific rules for a simplified notification.
§ 4. Until the Commission Chamber makes a determination on the admissibility of the concentration, the companies concerned cannot implement the concentration.
§ 5. However, the previous paragraph does not hinder the realization of a public offer of purchase or exchange or transactions by which control within the meaning of Article 7 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 is notified promptly to the Auditorate in accordance with this article, and
2° that the purchaser does not exercise the voting rights attached to the participations 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 Council Chamber in accordance with § 6.
§ 6. Without prejudice to the provisions provided for in § 5, the Council Chamber may at any time, at the request of the parties, grant an exemption from the obligation provided for in § 4. In this case, the Board of the Commission requests that the auditor file, within two weeks of the filing of the request, a report containing the elements of appreciation required for the decision making referred to in this paragraph.
§ 7. The Council Chamber may make its decision on conditions and charges.
Art. 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 Act.
Nevertheless, the limits referred to the Belgian competition authority by the European Commission pursuant to Articles 4, paragraphs 4 and 5, and 9, paragraph 1 are subject to the control established by this Act.er, Regulation (EC) No 139/2004 of the Council of the European Union, of 20 January 2004, concerning the control of concentrations between companies. In these cases, the parties re-report the concentration to the Auditorate in accordance with Article 10.
CHAPTER IV. - Bodies
Section 1re. - Competition Service
Art. 12. The Competition Service is responsible for:
1° of the research and review of the practices referred to in Chapter II under the authority of the Auditorate;
2° to ensure, on delegation of the Minister, and subject to section 12 of the Act of 10 June 2006 establishing a Competition Council, the representation of Belgium in European and international competition organizations;
3° to prepare, execute and evaluate the policy of economic competition in Belgium;
4° to prepare Belgian legislation and regulations on economic competition.
Art. 13. The means necessary for the implementation of this Act are made available to the Federal Public Service Economics, P.M.E., Average Classes and Energy, which provides logistical and material assistance to the Conseil de la concurrence.
Administrative assistance to the Conseil de la concurrence is provided by staff made available by the Federal Public Service Economy, P.M.E., Average Classes and Energy.
Section II. - Professional secret
Art. 14. Counsel of the Conseil de la concurrence, the members of the Auditorate, the clerks and officials of the Competition Service, as well as any other person working under their authority, shall be subject to professional secrecy and shall not disclose, without prejudice to the provisions of Section X of Chapter V, Article 55 and Royal Decrees made under Article 24, paragraph 2, to any person or authority, except for their knowledge, the confidential information
Art. 15. Without prejudice to the provisions of Section X of Chapter V and the Royal Decrees made under Article 24, paragraph 2, information held by Council advisers, members of the Auditorate, Clerks and officials of the Competition Service, as well as any other person working under their authority, may only be used for the purposes for which it was collected.
Without prejudice to the exchange and use of the information referred to in Section X of Chapter V, Council advisors, members of the Auditorate, Clerks and officials of the Competition Service, as well as any other person working under their authority, may not disclose the information they are aware of because of their functions and which by their nature are covered by professional secrecy. This obligation is also imposed on representatives of the competition authority and 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 relating to the implementation of the competition rules provided for in Articles 81 and 82 of the Treaty and Article 19 of Regulation (EC) No. 139/2004 of the Council of 20 January 2004 concerning the control of the concentrations between companies.
Art. 16. Any offence under articles 14 and 15 shall be punished by the penalties provided for in article 458 of the Criminal Code.
The provisions of Book I of the Penal Code, including Chapter VII and Article 85, are applicable to offences provided for in Article 15.
Section III. - Incompatibility
Art. 17. The functions of a full-time member of the Conseil de la concurrence, a member of the Auditorate and the Registry are incompatible with judicial functions, with the exercise of a public mandate conferred by election, with any paid public office or office of a political or administrative nature, with the office of notary and judicial officer, with the profession of a lawyer, with the state of a member and with the function of a minister of a recognized cult.
It cannot be derogated from paragraph 1er :
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 Minister.
Art. 18. The role of a part-time member of the Conseil de la concurrence is incompatible with the exercise of a public mandate conferred by election, with the military state and with the function of a minister of a recognized cult.
The adviser to the Court of Appeal of Brussels, a part-time member of the Conseil de la concurrence, may not, during the term of his term, take note of appeals against the decisions of the Conseil de la concurrence or its President, and may not, also after the end of his term, take note of appeals against decisions concerning cases in which he or she has served, barely nullity of the judgment in each case.
Art. 19. Council advisers, members of the Auditorate, Clerks, members of the Competition Council and officials of the Competition Service, as well as any person working under their authority, may not assume the defence of the persons concerned, either verbally or in writing, or give them consultations.
Council advisors, with the exception of those who do not exercise their full-time function, the members of the Auditorate and the Registrars 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.
Section IV. - The Competition Commission
Art. 20. 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. 21. The King shall determine the composition and functioning of the Competition Commission and its secretariat.
It appoints members by order deliberately in the Council of Ministers.
It also sets out the amount of allowances allocated to the Chairperson and members of the Commission, as well as to any person called upon to cooperate with the Commission.
CHAPTER V. - Procedures
Section 1re. - Training procedure
Art. 22. § 1er. Business instruction by the Auditorate is:
1° at the request of the interested parties referred to in Article 10 in the case of a notified concentration;
2° ex officio or at the request of the Minister when serious indications justify it or on complaint of a natural or legal person demonstrating a direct and current interest in the case of an offence under Articles 3, § 1er4, 10, § 1eror in case of non-compliance with a decision made under articles 10, § 5, 31, 36 or 37;
3° 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 3, § 1erArticle 4 or Article 10 § 1er;
4° ex officio, at the request of the Minister or the General Assembly of the Council for a Royal Decree of Exemption by class of agreements, decisions and concerted practices on the basis of section 28;
5° at the request of the Brussels Court of Appeal in the case of the application of Article 29, § 2, of the Law of 10 June 2006. above.
§ 2. In carrying out the tasks assigned to them, listeners 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 limit 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 time limits referred to in section 36 to the day the information is provided or no later than the day the deadline set by the auditor is expired.
The auditor shall notify the undertakings to which the information is required.
§ 3. Without prejudice to the powers of judicial police officers, the auditors and officials of the Competition Service commissioned by the Minister are competent to search for the offences under this Act and to find these offences by means of verbatim records of the contrary.
They are also competent to search for any useful information and to make any necessary observations for the application of Articles 7 to 11.
In the exercise of their mandates, they are subject to the supervision of the Attorney General.
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:
1° in the domicile of business leaders, directors, managers, directors, directors, and other staff members, as well as in the home and professional premises of natural or legal persons, internal or external, responsible for commercial, accounting, administrative, tax and financial management, between 8 and 18 hours, with the prior authorization of an instruction judge;
2° in the premises, means of transport and other places of the companies where they have reason to believe that they will find documents or information they consider necessary for the fulfilment of their mission and that they may take a copy, between 8 and 18 hours, with the prior authorization of the President of the Conseil de la concurrence.
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.
In order to conduct a search, seizure or sealing, the officials 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.
Auditors may commit experts to which they determine the advisory mission. Auditors may also use the officers of the Supervision and Mediation Branch of the Federal Public Service Economie, P.M.E., Average Classes and Energy.
§ 4. Notwithstanding the specific laws that guarantee the secrecy of declarations, public administrations shall assist the auditors and officials of the Competition Service in carrying out their duties.
§ 5. In the course of their training mission, the auditors, the competition officers and the staff of the Comptrollership and Mediation Branch shall comply with the following:
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 several persons are subject to the instruction, the auditor's report referred to in Article 23, § 4 will be written in the language of the established majority taking into account the provisions of Article 11. In the event of parity, one of the national languages will be used according to the needs of the cause.
§ 6. Before transmitting to the Council the reasoned report referred to in Articles 23, § 4, 33, § 4, 37, § 2, or 40, § 5, the Auditor shall prepare an inventory of all documents and data collected during the course of the instruction 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 reasoned report.
§ 7. Where the Auditorate or 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 Auditorate or the listener then pronounces. The Auditor or auditor may decide that the interest in the effective application of this Act shall prevail over the protection of the confidentiality of the data in question. The Auditor or Auditor shall notify the individual or legal persons who provided the data.
Where the Auditorate or the auditor accepts the confidential nature of the data, the Auditor shall, within the time limit that the Auditor General determines to the natural or legal person who provided the data, to prepare a summary or non-confidential version of the document in question, provided that such a summary or version is not already on file. Confidential documents are then removed from the file and replaced by the summary or non-confidential version.
When the Auditorate or 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.
§ 8. The natural or legal person who provided the said data may, within 10 days of the communication of the Auditor's decision or the auditor, appeal against this decision to the Commission. The time limit is two working days in the case of a concentration instruction or decision.
A Council Counsel, appointed by the President, who will not subsequently sit in the Chamber that is familiar with the case, shall take action within ten days on the appeal. The time limit is two working days in the case of a concentration instruction or decision. A separate appeal cannot be appealed to the Brussels Court of Appeal against such a decision.
§ 9. The Auditor or auditor may not disclose any confidential information until the Council counsel has made a decision on the appeal.
Section II. - Rules of instruction specific to restrictive competition practices
Art. 23. § 1er. Complaints and requests for restrictive competition practices are brought before the Auditorate.
§ 2. If the student concludes that the complaint or the application is inadmissible or not unfounded, the Auditor shall classify the complaint or the application by reason of decision. This decision is notified, by registered letter, to the complainant or the appellant, stating that he may consult the file with the Registry, obtain a copy against payment and that he may appeal against the decision to file with the Commission.
§ 3. The appeal referred to in § 2 shall be brought, in penalty of nullity, by reasoned and signed request, filed with the Registry within thirty days of the notification of the decision. The request shall, barely null and void, meet the conditions set out in article 29, § 2, paragraph 3, 1° to 3°, 5° and 7°, of the law of 10 June 2006 referred to above. The Council Chamber pronounces itself on rooms. The Board's decision is not subject to appeal or opposition. If the board considers that the appeal is based, the file is referred to the Auditorate for instruction and report to the board.
§ 4. When the Auditorate considers that the complaint or the application or, where appropriate, an ex officio investigation is founded, the auditor shall file a reasoned report on behalf of the Auditorate with the Board of Auditors. This report includes the investigation report, grievances and a decision proposal; it is accompanied by the instruction file and an inventory of the parts component. The inventory determines the confidentiality of the documents with respect to each of the parties that have access to the file.
The report also includes a reasoned regulatory proposal within the meaning of the second paragraph of Article 28, § 1er, if the auditor considers that concrete facts require general regulation.
Art. 24. The King may prescribe any formality for the constitution and introduction of the files, as well as the procedure for the Competition Service 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 Competition Service and the Auditorate and those organizations or institutions with regard to the mutual instruction and exchange of confidential information.
Art. 25. The Auditorate may, ex officio or at the request of the competent minister or minister according to the sector concerned, conduct or conduct general or sectoral investigations if there are serious indications of the existence of practices prohibited by Articles 3, § 1erand 4 and articles 81 and 82 of the EC Treaty. The provisions of Article 22 shall apply by analogy, with the exception of paragraphs 5 to 8 of § 3.
Section III. - Decision on restrictive practices
Art. 26. § 1er. At the time of filing of the report referred to in Article 23, § 4, the auditor shall notify the undertakings whose activity has been the subject of the instruction and transmit a copy of the report to them. He informs them that they can consult the file with the registry and obtain a copy against payment.
The Registry shall bring the report to the attention of the natural or legal persons who have filed the complaint. If the board of the Council who knows of the case the necessary esteem, the natural or legal persons who have brought the complaint and the other persons whom the Council will hear in accordance with § 5, paragraphs 2 and 3, may receive a non-confidential version of the report referred to in Article 23, § 4.
§ 2. The President of the Council Chamber who knows of the case then invites companies whose activities have been investigated to indicate the confidential passages of the report with a view to transmitting a non-confidential version of the report to the natural or legal persons who have introduced the complaint and to other persons whom the Council will hear in accordance with § 5, paragraphs 2 and 3. The President of the Council Chamber who is aware of the matter makes a decision in this regard, which is not subject to a separate appeal.
Persons who have filed the complaint and all other natural or legal persons heard by the Council in accordance with § 5, paragraphs 2 and 3, in principle do not have access to the file unless the President of the Council Chamber who knows the matter decides otherwise.
Where persons other than companies that are the subject of the investigation, wish to provide confidential information to the Council, a Council advisor who is not a member of the Board who knows the matter shall decide on confidentiality, as the auditor does, in accordance with the procedure provided for in article 22, §§ 6 and 7. Confidential documents do not, therefore, form part of the record and are replaced by a non-confidential version or summary to be provided by the parties that provided the data within the time limit set by the Council Counsel. This decision is not subject to separate appeal.
§ 3. As soon as the parties have access to the file pursuant to §§ 1er and 2, the room chair sets out the deadlines in which the auditor and the parties concerned file their written comments and replies. It extends these deadlines to the motivated request of the parties or the auditor.
Where the board, pursuant to § 5, paragraph 2 or 3, has granted access to the hearing to natural or legal persons, the board president may set a time limit in which the written submissions may be filed, in such a way that the auditor and the parties concerned may still file their written replies.
The Commission shall inform the Commission on Competition of any matter submitted to it by an auditor after receipt of the report of the auditor. It also communicates to it the name of the companies whose activity was the subject of the instruction and the provisions of the law on which the file is based.
§ 4. Where the board of the Board that is familiar with the matter is of the opinion that other grievances or elements that have been taken into account by the auditor should be examined, the auditor shall conduct a further instruction. In such a case, the auditor completes his report and files it with the Board Chamber that knows the matter. The Registry shall transmit to the parties concerned a copy of the supplementary report.
§ 5. The Commission's Chamber shall initiate each case at the hearing. She hears the auditor and the companies whose activity was investigated, as well as the complainant, at the request of the auditor.
When she considers it necessary, she hears 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 is to be considered as justification for sufficient interest.
Failure to appear by the parties convened or their representative does not affect the validity of the proceedings.
§ 6. Upon completion of the supplementary instruction referred to in § 4, the auditor shall file his report with the board and the procedure provided for in §§ 1er, 2 and 3 is taken over.
§ 7. The Commission'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 companies that are the subject of the investigation could not be aware of them.
§ 8. The King sets the rules of procedure before the Council and the conditions for obtaining copies.
Art. 27. A total or partial exemption from monetary penalties may be granted to a company or association of enterprises that, with others, has implemented a practice prohibited by Article 3, if it has helped to establish the reality of prohibited practice and to identify its authors, in particular by providing information that the competition authority did not previously have, by providing evidence of a prohibited practice, As a result of the company's or business association's approach, the Board's Board, which is aware of the matter, at the request of the Auditor General, adopts for this purpose a notice of leniency, which specifies the conditions to which the exemption envisaged after the company or association of the companies concerned has submitted their observations. This notice is forwarded to the company or association of companies and is not published.
At the time of the decision under this section, the board that is familiar with the case may, if the conditions specified in the notice of leniency have been met, grant an exemption of monetary penalties proportionate to the contribution made to the establishment of the offence.
Art. 28. § 1er. The King may, after consultation with the Competition Commission and the General Assembly of the Council, declare by order that Article 3, § 1er, is not applicable to categories of agreed agreements, decisions and practices.
The King may also take such an order at the request of the General Assembly of the Council. The general assembly of the Board may, in particular, decide to request such an order after receipt of a substantiated proposal for the regulation of the Auditorate.
In the case referred to in Article 23, § 4, paragraph 2, the auditor shall submit to the General Assembly of the Council for notice, at the end of the instruction, a report containing the proposal of regulation by royal decree.
The decision is motivated. It is deliberated in the Council of Ministers when it departs from the advice or request of the General Assembly of the Council.
§ 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.
Art. 29. The Board may, after receipt of the auditor's report on a complaint, application or instruction, declare, by reason of decision, that, based on the information that it is aware of, it is not necessary for it to intervene.
Art. 30. Upon receipt of the auditor's report, the Board of the Board that is familiar with the matter may note, by reason of decision:
1° that there is a restrictive practice of competition and order the cessation of competition, if any, in accordance with the terms and conditions prescribed by it;
2° that there is no restrictive competition practice, provided that there is no allocation of trade between member states of the European Community;
3° that Article 6, paragraph 2, or a Royal Decree within the meaning of Articles 6, paragraph 3 and 28 shall not have effect in an individual case, where the restrictive practice of competition in question produces effects incompatible with Article 3, § 3;
4° that a regulation within the meaning of Article 6, paragraph 1er, has no effect in an individual case, where the restrictive competition practice produces effects incompatible with Article 81, paragraph 3, of the EC Treaty on or part of the national territory, which has all the characteristics of a separate geographic market.
Art. 31. § 1er. When the Board of the Board that is familiar with the matter is considering a decision that requires the cessation of an offence and that the companies concerned offer commitments in order to address its concerns, it may, by decision, make mandatory commitments to businesses. It may request the auditor to file a report on the proposed commitments within the time frame it determines. The decision may be adopted for a specified period and conclude that there is no longer a need for the Commission to act. 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 detrimental recognition by the company concerned.
§ 2. The Council may reopen the procedure provided for in articles 22 to 26, upon request or on its 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. 32. If the agreement, decision or concerted practice on which the instruction was carried is subject to a regulation by the Council of the European Communities or the European Commission declaring Article 81, paragraph 1er, the EC Treaty unenforceable or a Royal Decree within the meaning of Article 28, the Council Chamber which knows of the case finds it and makes a decision to classify it.
Section IV. - Concentration Instruction
Art. 33. § 1er. The auditor designated by the Auditor General shall promptly transmit to the Council a copy of the notifications of concentrations made under section 10. It 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.
§ 2. The auditor may charge the competition officers designated under Article 20, § 3, paragraph 1erof the law of 10 June 2006 referred to above of duties of instruction.
§ 3. The auditor designated under section 18 of the above-mentioned Act of 10 June 2006 shall file the motivated report and the record with the Commission. This report contains an instruction report and a decision proposal; it is accompanied by the instruction file and an inventory of the parts component. This inventory determines the confidentiality of the documents with respect to each of the parties that have access to the record.
§ 4. The report is filed within twenty-five working days from the day after the day on which the notification is filed with the Auditorate. 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 period is extended by five working days when commitments have been made pursuant to section 34, paragraph 2.
§ 5. The auditor shall, at the filing referred to in § 4, transmit a copy of the report to the notifying parties. It also communicates, after removing business secrets and confidential information, a copy of the report to the representatives of the most representative organizations of the workers of these companies or to those they designate.
It shall inform the persons referred to in the first paragraph that they may consult the file with the Registry, excluding the documents that are confidential to them, and obtain a copy against payment.
Art. 34. 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 9, § 4, he shall inform the companies participating in the concentration, at least five working days before the filing of the report with the Council, as provided for in Article 33, § 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 36, § 2, paragraph 1er1°.
The auditor hears the companies that are parties to the concentration on the commitments presented and takes a position on the said commitments in the report.
Section V. - Concentration Decision
Art. 35. § 1er. The Commission's Chamber shall initiate each case at the hearing. The hearing shall be held at least ten working days after the report is communicated to the notifying parties.
§ 2. The Board Chamber hears companies that are parties to the concentration. They provide their written submissions to the record no later than the day before the hearing and provide a copy to the auditor.
When it considers it necessary, the Council Chamber that knows of the case hears any natural or legal person that it summons.
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.
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 Minister, no later than three working days prior to the hearing, may send a note to the Commission in which he sets out the elements of the matter concerned that relate to general policy and those that are likely to influence the general policy on economic competition. The filing of this note does not give it the quality of party to the cause. The Registry shall forthwith transmit the note to the notifying parties.
The failure to appear by the parties convened or their representative does not affect the validity of the procedure.
§ 3. Other individuals that the parties at the concentration may provide information to the Commission's chamber that is familiar with the matter no later than three working days prior to the hearing. The Clerk shall immediately communicate this information to the notifying parties and to the Auditorate.
Where other persons who are parties to the concentration wish to communicate to the Council confidential information, a Council advisor who is not a member of the board who makes the decision shall decide on confidentiality, pursuant to the procedure provided for in article 22, §§ 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 Commission'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 were unable to find out.
§ 5. The King sets the rules of procedure before the Council and the conditions for obtaining copies.
Art. 36. § 1er. The Board finds, by a reasoned decision:
1° that the concentration falls within the scope of this Act;
2° that the concentration does not fall within the scope of this Act.
§ 2. If the concentration falls within the scope of this Act, the board shall make one of the following reasons:
1° or it may decide that the concentration is admissible.
It may include its determination of terms and/or charges to ensure that the companies concerned meet the commitments they have submitted in order to hear the qualifying concentration. When the Board wishes to consider the conditions and/or charges that are not discussed in the report, the companies concerned and the auditor are heard on this point and have at least two working days to decide on this matter. The notifying parties may change the conditions of the concentration, until the decision of the Board that is familiar with the matter is taken. In this case, the Eligibility Decision addresses the concentration as amended;
2° either 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 may find that there are serious doubts about the admissibility of the concentration and decide to initiate the supplementary instruction procedure referred to in Article 37.
Commission decisions referred to in paragraph 1er shall be made within forty working days from the day after the day on which the notification is received, if any, extended pursuant to Article 33 § 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 Commission has not rendered its decision within the time limit set out in paragraph 2.
§ 3. The time limit referred to in § 2 of this Article may be extended only upon the express request of the notifying parties, and only for the duration that they propose. In any case, the Board Chamber that is familiar with the case authorizes an extension of fifteen working days and a new hearing if the notifying parties so request.
§ 4. The King may, after consultation with the General Assembly of the Council, amend the period referred to in § 2.
It may also determine the conditions for the suspension of these deadlines if the translation of certain documents is necessary.
Art. 37. § 1er. If the Council Chamber makes the decision referred to in Article 36, § 2, paragraph 1er, 3°, the auditor conducts a supplementary instruction and submits a supplementary report to the Board Chamber that knows the matter. The provisions of Article 33, except §§ 1er and 4, are applicable to the supplementary instruction and report.
No later than twenty working days after the date of the decision to initiate the proceedings in accordance with Article 36, § 2, 3°, notifying companies may submit to the auditor commitments to obtain an admissibility decision.
§ 2. The auditor shall file the supplementary report with the Board Chamber that is familiar with the matter within thirty working days of the decision to initiate the proceedings. This period shall be extended for a period equal to that used by the notifying parties in order to submit commitments in accordance with § 1er. This supplementary report is communicated in accordance with Article 33, § 5.
Where the auditor is of the opinion that the concentration must be declared admissible in accordance with Article 9, § 3, the supplementary report mentions 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 9, § 4, or must be subject to conditions and/or charges, the supplementary report mentions the reasons why the concentration must be prohibited or must be subject to the conditions or charges that the auditor proposes.
§ 3. Companies that are parties to the concentration and persons who intervene in the proceedings in accordance with Article 35, § 2, shall file their written comments, if any, within 10 working days of the filing of the supplementary report, with a copy to the auditor and other parties to the case.
§ 4. When written submissions are filed in accordance with § 3, the auditor may file an additional report with the board that knows the case within five working days after the expiry of the period provided for in § 3. This supplementary report is communicated in accordance with Article 33, § 5. Companies participating in the concentration shall submit their written submissions to the record no later than the day before the hearing, with a copy to the auditor. Any additional written comments by the intervening parties are excluded from the discussion.
§ 5. The Board Chamber shall initiate the case in accordance with section 35.
§ 6. The decision of the board on the admissibility of the concentration is made within sixty working days of the decision to initiate the procedure, if any extended in accordance with § 2. This decision may be accompanied by conditions and/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 Board of the Board that is familiar with the matter wishes to consider the conditions and/or charges that are not discussed in the report, 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 Council has not rendered its decision within sixty working days, if any extended as provided in § 2, when the enterprises concerned submit commitments, in accordance with § 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 Council Chamber that is familiar with the case, in any case, grants an extension 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 General Assembly of the Council, amend the period referred to in paragraph 1er.
§ 7. When the Board of the Board that is familiar with the matter finds in its decision that the concentration is not admissible, it orders, with a view to restoring effective competition, the splitting of companies or grouped assets, the termination of joint control or any other appropriate measure.
Art. 38. § 1er. Within thirty working days from the notification of the Council's decision to the notifying parties and to the Prime Minister's chancery, the Council of Ministers may authorize a concentration for reasons of general interest that prevail over the risk of a competition breach identified by the Conseil de la concurrence. The Council of Ministers may also fully or partially lift the conditions and charges imposed by the Competition Council.
In its appreciation and motivation, the Council of Ministers takes into account, inter alia, the general interest, national security, the competitiveness of the sectors concerned with international competition, as well as the interest of consumers and employment.
§ 2. The Council of Ministers shall decide on its own motion or at the request of the notifying parties.
§ 3. The decision of the Council of Ministers shall be taken within thirty working days from the notification of the decision of the Conseil de la concurrence and on the sole basis of that decision. In the absence of a decision by the Council of Ministers within that time limit, the Council of Ministers is deemed not to grant authorization.
Section VI. - Instruction and Decision in Simplified Concentration Procedure
Art. 39. § 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 33, § 1er and §§ 3 to 5, and 34 to 37.
§ 2. The auditor shall conduct the investigation of the case as soon as he receives the notification provided for in Article 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 opposition, the auditor finds it in a letter that it communicates to the notifying parties. The auditor shall transmit at the same time a copy of this letter to the Commission for publication.
§ 4. The auditor's letter referred to in § 3 shall be considered, for the purposes of this Act, as a decision of the Council within the meaning of section 36, § 2, 1°.
§ 5. When the auditor arrives at the conclusion that the conditions for the application of the simplified procedure are in his or her opinion not fulfilled or that there are doubts about the eligibility of the concentration, he or she finds it in a letter containing a summary motivation, which he or she communicates to the notifying parties, with a copy to the Commission.
This letter is not subject to separate appeal.
This letter from the auditor ends the simplified procedure, so that sections 33 to 37 are again fully applicable. The notification is considered to have been incomplete since the beginning within the meaning of Article 33, § 1er. The notification shall be deemed complete on the day after the day on which the notifying parties provide the missing information referred to in the auditor's letter.
§ 6. The auditor shall communicate the letter referred to in § 3 or § 5 to the notifying parties within twenty business days. The concentration is deemed to be approved when the auditor did not provide the said letter within the time limit mentioned.
Section VII. - Interim measures
Art. 40. § 1er. The President of the Council or adviser that he or she delegates 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 irreparable harm to companies whose interests are affected by these practices or adversely affect the general economic interest.
§ 2. Requests for interim measures may be filed with the Auditorate by the complainant, the minister or the competent minister according to the sector concerned. The Auditorate shall inform companies or business associations of the application against which interim measures are requested and shall transmit copies of requests to the President of the Council.
§ 3. When the auditor concludes that the request for interim measures is inadmissible or unfounded, the auditor shall class it by reasoned decision. This decision is notified, by registered letter, to the complainant or the Minister, indicating that he may consult the file at the Registry, obtain a copy against payment, and that he may appeal against the decision to file with the President of the Commission.
§ 4. An appeal against a ruling of classification may be brought before the President of the Council by a signed and substantiated request, filed with the Registry, barely invalid, within thirty days of notification of the decision. This request, barely invalid, fulfils the conditions laid down in article 29, § 2, paragraph 3, 1° to 3°, 5° and 7°, of the law of 10 June 2006. The President of the Council shall take action on exhibits. These decisions of the President are not subject to appeal. If the President of the Commission considers that the appeal is based, the file is referred to the Auditorate for instruction and report to the President.
§ 5. When the auditor considers that the application is admissible and substantiated, the auditor shall file a substantiated report with the President of the Commission. This report mentions the measures that the auditor considers necessary to suspend the practices referred to in § 1er.
§ 6. After the filing of the report referred to in § 5, the procedure referred to in Article 26 also applies for requests for interim measures.
Section VIII. - Fines and constraints
Art. 41. When making a decision under section 30, 1°, the Chamber of the Competition Council that is familiar with the case may impose fines on each of the companies and associations of the companies concerned not exceeding 10% of their turnover, as determined by the criteria set out in section 52. 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, determined according to the criteria set out in section 52, per day of delay from the date fixed in the decision.
These fines and fines may also be imposed in the case of application of articles 30, 1°, 3° and 4°, and 31, § 2, and in case of non-compliance with the decisions referred to in articles 36, § 2, 1°, and 37, § 7.
Art. 42. § 1er. The Board's Board that is familiar with the case may impose fines on individuals, businesses or business associations up to 1% of the revenue determined according to the criteria set out in section 52 where, deliberately or negligence:
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 22 and the investigations referred to in Article 25.
§ 2. The same fines may be imposed when a company has conducted a concentration without prior notification in accordance with section 10, even if the concentration is eligible.
Art. 43. In the event of an offence under Article 10, § 4, the board that knows of the case may impose fines referred to in Article 41, § 1er.
It may, in addition, inflict the offences referred to in Article 41, § 1erto enforce the order referred to in Article 37, § 7.
Art. 44. The President of the Council may inflict the offence referred to in Article 41, § 1erin order to ensure compliance with the interim measures it has taken in accordance with Article 40 and compliance with the decision referred to in Article 22, § 2, paragraph 3.
Section IX. - Publication and notification
Art. 45. The decisions of the Council and its President shall be notified by the Registry by registered letter to the position with acknowledgement of receipt, to the parties, the complainants and the Minister, and to any person who may justify an interest in accordance with section 26, § 5, paragraph 3 or section 35, § 2 and who has requested to be heard by the Council.
The President of the Council Chamber 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. 46. § 1er. The Auditorate shall, upon receipt, communicate any notification of concentration for publication by extract to the Belgian Monitor and on the website of the Conseil de la concurrence. 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 Council or its President, including those referred to in Sections III to VIII of this chapter, are published in the Belgian Monitor and on the website of the Conseil de la concurrence.
The decisions of the Court of Appeal, the Court of Cassation, the Council of Ministers and the Council of State shall be issued to the Belgian Monitor and shall be notified to the parties, by the Registry concerned or the Minister, as the case may be, by registered letter to the post, with acknowledgement of receipt.
The notices that the concentration is supposed to be authorized, in the absence of a decision, are also published to 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 35, § 2 and who requested to be heard by the Council.
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 board who made the decision takes into account the legitimate interest of the companies to ensure that their business secrets and other confidential information are not disclosed.
The notification of the decision of the Council or its President indicates that it is subject to appeal to the Brussels Court of Appeal within 30 days of the notification.
Not considered to be final decisions under this appeal procedure, the decisions that a concentration falls within the scope of this Act and those that provide for the procedure provided for in section 37.
The notification of the Council of Ministers' decision on concentration refers to the fact that it is likely, when it is final, to appeal to the Council of State within thirty days of the notification.
Section X. - Cooperation with the European Commission and competition authorities of other EU Member States
Art. 47. When the Belgian Competition Authority, pursuant to Article 84 of the Treaty establishing the European Community, determines the admissibility of agreements and the abuse of a dominant position on the common market, the decision shall be made in accordance with Articles 81, 1, and 82 of the Treaty, in accordance with the procedure and penalties provided for in this Act.
When the Belgian Competition Authority, pursuant to regulations or directives made on the basis of Article 83 of the Treaty establishing the European Community, determines the application of the principles set out in Articles 81 and 82 of this Treaty, the decision shall be made in accordance with these regulations or directives, in accordance with the procedure and penalties provided for in this Act.
Art. 48. The auditors and the Competition Service are responsible, pursuant to Article 20, § 5, of Council Regulation (EC) No 1/2003, to carry out, on their own initiative, at the request of the European Commission or at the request of a national competition authority of another European Community, assistance, verification or other missions within the framework of the monitoring of compliance with the rules of competition of the European Communities.
Auditors and officials authorized to do so have the same powers and obligations as those of the mandated agents referred to in Article 22 when they intervene at the request of a competition authority from 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. 49. For the purposes of Articles 81 and 82 of the Treaty establishing the European Community, the Competition Service, the Auditorate and the Council may communicate to the European Commission and the competition authorities of the Member States any factual or legal elements, including confidential information, as well as, where appropriate, use as evidence of such information obtained from the European Commission or the competition authorities of other Member States.
CHAPTER VI. - Criminal provisions
Art. 50. The use or disclosure of documents or information received pursuant to the provisions of this Act for purposes other than the application of this Act and Articles 81 and 82 of the Treaty establishing the European Community shall be punished by a fine of 100 to 10,000 euros and imprisonment of two months to five years or only one of these penalties.
Any offence under Article 22, § 3, paragraph 6, and the order referred to in Article 56 is also punishable by a fine of 100 to 10,000 euros and imprisonment of two months to five years or only one of these penalties.
Art. 51. The provisions of Book 1 of the Penal Code, including Chapter VII and Article 85, apply to offences referred to in Article 50.
CHAPTER VII. - Other provisions
Art. 52. § 1er. The turnover referred to in sections 41 and 42 is the total turnover realized during the previous fiscal year in the national and export market. It is defined in Title VI of Book IV of the Corporate Code relating to the consolidated annual accounts of companies.
The turnover referred to in Article 8 is the total turnover realized during the previous social year in Belgium. It is defined as Title VI of Book IV of the Corporate Code relating to the consolidated annual accounts of companies.
§ 2. By derogation from § 1er, where a concentration consists of the acquisition of parties - whether incorporated or not as legal entities - 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 considered in the head of the assignor(s).
However, two or more transactions referred to in the first paragraph, which take place in a period of two years between the same persons or businesses, are to be considered as a single concentration transaction occurring on the date of the last transaction.
§ 3. The turnover is replaced:
(a) for credit institutions and other financial institutions, by the sum of the following items, as set out 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;
1st interest and similar products;
2° securities income:
(a) income from shares, shares and other variable income securities;
(b) interest income;
(c) share income in related enterprises;
3° commissions perceived;
4° net profit from financial transactions;
5° 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.
(b) 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 premiums. Gross premiums paid by residents in Belgium are taken into account.
§ 4. With respect to the application of Articles 8 and 41, and without prejudice to § 2 of this Article, the turnover of each enterprise is the sum of the business figures of all enterprises belonging to the same group.
It is considered to be owned by the same group, the undertakings related to the meaning of Book IV, Part VI, of the Corporate Consolidated Annual Accounts Code.
§ 5. For public enterprises referred to in section 53, 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 rules that apply to them.
Art. 53. Public enterprises and enterprises to which public authorities grant special or exclusive rights are subject to the provisions of this Act insofar as this application fails, in law or in fact, to the particular mission which has been given to them by or under the law.
Art. 54. § 1er. The instruction referred to in Article 22 shall be limited to facts not more than five years old. This deadline is based on the date of the Auditorate's decision to conduct an instruction of office or the date of referral of the Auditorate in accordance with Article 22, § 1er.
§ 2. The limitation period with respect to the instruction and decision procedure is five years from the date referred to in § 1er.
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 Commission 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 inspection;
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 only runs from the day the offence ended.
The limitation period in respect of the imposition of fines or trenches shall be interrupted by any act of the Competition Service, the Auditorate or the Council or, in respect of the application of Articles 81 and 82 of the Treaty, 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 that participated in the offence.
These include acts interrupting this period:
1st written requests for information from the Auditorate or the competition authority of a Member State;
2° the written inspection warrants issued to its officials by the Auditorate or by the competition authority of a Member State;
3° the undertaking of a procedure by the Auditorate or by a competition authority of a Member State;
4° the filing of the report containing the grievances in accordance with Articles 23, § 4 or 26, §§ 4 and 6, by the Auditorate or the 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.
The limitation period runs again from each interruption. However, the statute of limitations is acquired no later than the day on which a period equal to the double of the statute of limitations expires without a fine or violation of the Commission. This period is extended for the period during which the prescription is suspended in accordance with the following paragraph.
The limitation period for the imposition of fines or trenches is suspended as long as the Commission's decision is pending before the Brussels Court of Appeal.
§ 4. The power to enforce the decisions made under sections 22 and 23 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.
The limitation period runs again 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 Brussels Court of Appeal decision.
Art. 55. Notwithstanding the provisions of Article 50, within the framework of reciprocal agreements on mutual assistance relating to competition practices, the Belgian Competition Authority may also communicate the documents and information necessary to the competent foreign authorities in the field of competition.
Art. 56. Without prejudice to the provisions of the Act of 27 March 1969 relating to the regulation of maritime and air transport, and with the exceptions it determines, the King may, by order deliberately in the Council of Ministers, and after consultation with the Council and the Commission on Competition, take measures to prohibit companies from giving information or documents that have not been published and related to their competition practices to a foreign State or to an agency under the Council of Ministers.
Art. 57. If the company fails to pay the fine or stay, the Commission's decision or its President's decision or the decision of the Brussels Court of Appeal passed as a matter of fact is forwarded to the administration of the Value Added Tax, the Recording and the Domains 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 of the payment of fines and fines referred to in sections 41 to 44.
Art. 58. The costs associated with the application of this Act are to be charged to the Federal Public Service Economy, P.M.E., Average Classes and Energy.
The King may, by order deliberately in the Council of Ministers, set 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 to this Act.
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 paragraphs.
Art. 59. The instruction is carried out and the report 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 the event of parity, one of the national languages will be used 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).
A concentration is notified in Dutch or French, with the choice of notifying parties.
CHAPTER VIII. - Transitional provisions
Art. 60. § 1er. Requests under Article 6, § 1erthe Law on the Protection of Economic Competition, coordinated on 1er July 1999, as well as notifications made under Article 7, § 1er, the same law shall be null and void on the date on which this Act comes into force.
§ 2. Proceedings in accordance with the Law on the Protection of Economic Competition, coordinated on 1er July 1999, continue to produce their effects for the purposes of this Act.
§ 3. Article 29, § 2, second paragraph, of the Law on the Protection of Economic Competition, coordinated on 1er July 1999, remains applicable to the exemption decisions adopted by the Council under Article 2, § 3, of the same Act, before the date of entry into force of this Act, until such decisions become null and void.
Art. 61. The term of office of the President, the Vice-President, the two full-time members and the other members of the Conseil de la concurrence who have been appointed under the provisions of the Law on the Protection of Economic Competition, is terminated in full right on the date of the coming into force of this Act.er July 1999.
Members referred to in paragraph 1er However, they continue to exercise their mandate as long as they have not been provided for replacement.
Art. 62. Rapporteurs to the Competition Service are appointed auditors.
The secretary and deputy secretary of the Council are appointed clerk and deputy clerk.
CHAPTER IX. - Final provisions
Art. 63. The Law on the Protection of Economic Competition, coordinated on 1er July 1999, as amended by the laws of 15 March and 26 June 2000, the Royal Decrees of 20 July 2000 and 10 August 2001, the Act of 3 May 2003 and the Royal Decrees of 25 April 2004 and 3 July 2005, are repealed.
Art. 64. 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.
Promulgate this law, order that it be clothed with the seal of the State 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. - Bill, 51-2180 - No. 1. - Amendments, 51-2180 - nbones 2 and 3. - Report, 51-2180 - No. 4. - Text adopted by the Commission, 51-2180 - No. 5. - Scinded text in plenary meeting (art. 78 of the Constitution), 51-2180 - No. 6. - Scinded text in plenary meeting (art. 77 of the Constitution), 51-2180 - No. 7. - Text adopted in plenary and transmitted to the Senate, 51-2180 - No. 8.
Full report. - 30 March and 20 April 2006.
Senate.
Documents. - Project not referred to by the Senate, 3-1664 - No. 1.