Publication date: 26/04/2019
On 25 April 2019, Belgian Parliament adopted an act reforming Belgian competition law, i.e. book IV of the Code of Economic Law (CEL). Given the numerous changes, the drafters of the new law have opted to replace the entire book IV of the CEL instead of amending existing articles and/or adding new articles. Despite this, the new law will not change much on the substance or institutionally as it mainly concerns a technical clean-up of the existing law by:
- Improving the text of the law by clarifying ambiguities, avoiding interpretation issues, simplifying procedures or avoiding inconsistencies. For example, the new law now clearly indicates that all natural persons committing infractions to competition law may be sanctioned even if they have not acted “in name and on behalf of” the undertaking concerned.
- Confirming existing case-law and practices. For example, the new law confirms the existing practice of the prosecuting service to accept commitments (the existing law only explicitly provided this option for the Competition College).
- Making various minor changes. For example new deadlines for replying to statements of objections, centralising all prior judicial warrants for dawn raids with a Brussels-based judge, allowing the prosecuting service to add or requalify objections following receipt of the reply to its statement of objections, etc.
Nevertheless, the following points are worth mentioning as these are in our view likely to have the biggest impact on undertakings:
- The new law increases the maximum fine that can be imposed for infringements of competition law to 10% of the worldwide turnover whereas the maximum currently stands at 10% of the turnover generated in or from Belgium. This brings the legal maximum for fines in line with Article 15 of the ECN+ Directive. This increased cap will apply to infringements committed after the new law has taken effect.
- With the new law, it will be no longer possible for companies to obtain immunity from fines by simply admitting guilt; in addition, in line with the practice at EU level, these companies will have to provide evidence of the infringement. However, natural persons will continue to be able to obtain immunity by simply admitting guilt.
- Currently, the statute of limitations – five years that can be restarted with every investigatory act and in any event no longer than ten years – will also be suspended by appeals to the Supreme Court (Hof van Cassatie / Cour de Cassation). This period is currently only suspended by appeals to the Market Court.
The most significant change resulting from the new law concerns the increase of the cap on fines. Otherwise, the new law does not make significant changes and indeed seems to improve the overall readability and consistency. It is, however, doubtful that the current text will remain unchanged for long as the abovementioned ECN+ Directive, which will need to be implemented by 04 February 2021, may necessitate further changes to Belgian legislation.
The new law will enter into force 10 days after the publication of the law in the Belgian Official Gazette. The changes will apply immediately with the exception of the abovementioned change regarding natural persons.