As from April 1, 1993, certain well defined major mergers and acquisitions in Belgium must receive the green light from the Belgian Competition Council before being implemented. The Competition Act of August 5, 1991 (in force as from April 1, 1993) establishes a pre-merger review procedure of concentrations closely modeled after the EC Merger Control Regulation.

Only concentrations which meet the following two thresholds fall within the scope of the obligation to notify the proposed transaction :
  • - the aggregate turnover of the undertakings concerned must
  • be higher than BEF 1,000,000,000 during the last business
  • year on a combined worldwide basis; and
  • - the combined market share of the undertakings must exceed
  • 20% of the relevant market in Belgium.
Different rules are applicable to credit institutions and insurance companies.

Concentrations which meet these thresholds must be notified to the Belgian Competition Service of the Ministry of Economic Affairs within a period of one week, from the conclusion of the agreement, the announcement of the bid or the acquisition of a controlling interest. The notification must be made jointly by the two parties when the two parties agree on the proposed concentration. In case of an "aggressive" concentration (e.g., hostile bid), the bidder only has to notify the proposed concentration.

The Competition Service will then investigate the proposed transaction.

The Competition Council, which is an administrative court, will thereafter either approve the concentration, grant an exemption or oppose the concentration. The Competition Council also has the power to give negative clearances.

Decisions of the Competition Council may be appealed before the Brussels Court of Appeals.

The first cases brought before the Competition Council in conformity with the Competition Act have resulted in a very limited number of refusals by the Competition Council. However, the procedures are long and the Competition authorities require that the parties to the concentration produce well-detailed and lengthy files. The application of the Competition Act is therefore a matter which can quite significantly delay the implementation of the concentrations falling within the scope of the Competition Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

For further information contact Thierry Lohest on + 32.2. 517.94.09.