Overview of information on concentrations

IMPORTANT NOTE: This overview is intended to provide introductory material on concentrations. Reading it is not a substitute for consulting the referenced statutes and legislation. If you are analyzing a particular transaction, this overview should be a starting point only.

The following topics are treated:

1. Merger notification  and review materials
2. Authority or authorities responsible for merger enforcement 
3. Notification requirements 
4. Covered transactions 
5. Thresholds for notification 
6. Transactions in which the acquiring and acquired parties are foreign 
7. Simplified procedures 
8. Timing of notification 
9. Documents to be submitted 
10. Translation 
11. Review and waiting periods  / Suspensive effects
12. Responsibility for notification / representation
13. Filing fees 
14. Confidentiality 
15. Sanctions/ penalties 
16. Judicial review 
17. Additional filings 
18. Closing deadlines 

1. Merger notification and review materials

1.A. Notification provisions

The notification provisions are included in the Belgian Act on the protection of economic competition, consolidated on 15 September 2006 (chapter II, section 2 mergers)

(Belgian Official Gazette, 29 September 2006).

1.B. Notification forms or information requirements

Notifications shall be submitted in the manner prescribed by Form CONC C/C 1, as shown in the Annex to the Royal Decree of 31 October 2006 relating to the notification of mergers of undertakings referred to in Article 9 of the Act on the Protection of Economic Competition consolidated on 15 September 2006.

1.C. Substantive merger control provisions

There is no separate regulation for mergers in the Belgian legislation regulating economic competition.

As mentioned before (point 1 A) the merger control provisions are mainly included in the Belgian Act on the Protection of Economic Competition, consolidated on 15^th  September 2006 (further abbreviated as "the Act").

Article 8 of the Act contains a significant lessening of competition test similar to the test in EC Regulation 139/2004 (the EC merger regulation)

1.D. Implementing regulations

The implementing decrees with regard to mergers are the following:

• Act on the protection of economic competition consolidated on 15^th September 2006.
• the Royal Decree of 31 October 2006 relating to the notification of mergers of undertakings referred to in Article 9 of the Act on the Protection of Economic Competition consolidated on 15 September 2006
• the Royal Decree of 31 October 2006 relating to the Procedure for the Protection of Economic Competition
• the Royal Decree of 31 October 2006 relating to the payment and recovery of fines and penalty payments referred to in the Act consolidated on 15^th September 2006 on the Protection of Economic Competition
• the Royal Decree of 31 October 2006 relating to the handing in copies of the dossiers referred to the act on the protection of economic competition, consolidated on 15 September 2006.
• the Ministerial Decree of 31 October 2006 relating to the sending of the dossier from the council of competition to the court of appeal in Brussels.
• the Ministerial Decree of 31 October 2006 relating to the sending of the dossier of the procedure from the sectorial regulator to the council of competition
• specific rules on simplified notification of mergers (8 June 2007)

The implementing regulations and notices can be consulted on the website of the Belgian competition Authority

1.E. Interpretive guidelines and notices

See above (point 1 D).

1.F. Annual report

• Annual report of the Competition Council
• The case law of the competition council can be

2. Authority or authorities responsible for merger enforcement

2.A. Name of authority. If there is more than one authority, please describe allocation of responsibilities.

1) The Directorate General for Competition (Competition Service) of the Federal Public Service (Ministry) of Economy.

It investigates the cases initiated under the Act under the direction of the competition prosecutor in charge of the case.

2) The college of competition prosecutors has been set up at the Competition council.

The competition prosecutors:

1. receive notifications of concentrations;
2. head and organise investigations and ensure the implementation of decisions taken by the Competition Council;
3. issue instructions to the Competition Service’s officials charged with carrying out investigative tasks, including those tasks referred to in article 44, § 3, clause 8;
4. draw up and submit the reasoned report to the Competition Council;
5. can decide not to take action following complaints and requests for provisional measures;
6. at the request of interested natural or legal persons, or on their own initiative, rule on the confidential nature of data provided to the Competition Service or to the body of administrative prosecutors during the procedure;
7. request the referral of a concentration to the Belgian competition authority and also referring 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, dated 20 January 2004, on the control of concentrations between undertakings;
8. applying article 61 and art.44 in respect of a .simplified procedure

The Directorate General for Competition and the competition prosecutors assist also European competition authorities with enforcement of EU rules on competition.

3) The Competition Council

The Competition Council is an administrative court with the power to take decisions, deliver opinions and make proposals, conferred upon it by the Act.

It rules on the acceptability of mergers.

2.B. Address telephone and fax (including country code), e-mail, website address and languages available.

• Further information about the administrative procedure or printouts of decisions can be obtained from

The Registry of the Competition Council

North Plaza A / 8th floor

Koning Albert II laan / Boulevard du Roi Albert II, 9

B-1210 Brussels

Tel.: (32-2) 277 52 72

Fax: (32-2) 277 53 23

E-mail: raco@economie.fgov.be

• For all other issues please contact the

Federal Public Service Economy, SMEs, Self-employed and Energy

Directorate-General for Competition

Competition Service

North Gate / 7th floor

Koning Albert II-laan / Boulevard du Roi Albert II, 16

B-1000 Brussels

Tel: + 32 2 277 72 16

Fax: + 32 2 277 52 54

E-mail: dg.competition@economie.fgov.be

2.C. Is agency staff available for pre-notification consultation? If yes, please provide contact points for questions on merger

Responsible prosecutors available for pre-notification consultation:

See registry

3. Notification requirements

3.A. Is notification mandatory pre-merger?

Notification is required prior to the implementation of mergers (art. 8 § 1 of the Act).

Notification of a merger operation is however only compulsory when the conditions laid down in art. 7 of the Act are met.

3.B. Is notification mandatory post-merger?

See point 3 A

3.C. Can parties make a voluntary pre- or post-merger filing even if filing is not mandatory?

The parties can notify the Council of a draft agreement provided that they explicitly declare that they intend to conclude an agreement that does not significantly differ from the draft notified with regard to all relevant items of competition law (art. 9 1 of the Act).

4. Covered transactions

4.A. Definitions of potentially covered transactions

Art. 6. § 1. For the purposes of this law, a concentration comes into effect in the case of a permanent change of control resulting from:

1. the merger of two or more previously independent undertakings or parts of such undertakings, or
2. the acquisition, by one or more persons already controlling at least one undertaking or by one or more undertakings, of the direct or indirect control of all or part of one or more other undertakings, either by way of a participating interest in the capital or the purchase of assets, contractually or by any other means.

§ 2. The creation of a joint venture carrying out on a permanent basis all the functions of an autonomous economic entity shall be considered as a concentration operation within the meaning of § 1, 2° (art. 6 § 1 and § 2 of the Act).

4.B. If change of control is a determining factor, how is control defined?

For the purposes of the Act, control shall be constituted by rights, contracts or any other means which, either separately or jointly and having regard to the considerations of fact or law involved, confer the opportunity of exercising decisive influence over the activities of an undertaking, in particular by:

1. ownership or the right to use all or part of the assets of an undertaking;
2. rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking (art. 6 § 3 of the Act).

4.C. Are partial (less than 100 %) stock acquisitions/minority shareholdings covered? At what levels?

As mentioned above (point 4 B), control is a determinant factor to define the realization of a merger.

In the Act, control is defined as the opportunity of exercising decisive influence over the activities of an undertaking (see point 4 B) (art. 6 § 3 of the Act).

Control can also be reached by partial (less than 100 %) stock acquisitions/ minority shareholdings.

4.D. Do the notification requirements cover production joint ventures or any other type of joint venture?

Yes, if they constitute a concentration i.e. if there is a change of control in respect of an autonomous economic identity.

4.E. Are any sectors excluded from notification requirements?

There are no sectors excluded from notification requirements.

4.F. Are transactions that do not meet merger notification thresholds subject to substantive merger control?

Transactions that do not meet merger notification thresholds are not subject to substantive merger control (notification thresholds see art. 7 of the Act).

5. Thresholds for notification

5.A. What are the general thresholds? Are the thresholds subject to adjustment (e.g. annually for inflation)? If adjusted, state on what basis and how frequently.

Art. 7. § 1. The provisions of this section shall apply only where the undertakings concerned, taken together, have a total turnover in Belgium, determined in accordance with the criteria referred to in article 86, of more than 100 million euros, and where at least two of the undertakings concerned each have a turnover of at least 40 million euros in Belgium and provided the concentration does not have a community dimension in the meaning of Regulation (EC) 139/2004.

§ 2. The King may, by a decree deliberated by the Council of Ministers, and after consultation with the general assembly of the Competition Council and Commission, increase the thresholds referred to in §1.

§ 3. Every three years, the general assembly of the Council shall assess the thresholds referred to in §1,taking into account inter alia the economic incidence and administrative burden for undertakings.

The College of competition prosecutors shall submit an opinion to the general assembly of the Council on this assessment (art. 7 §1, §2 en §3 of the Act).

5.B. To what period(s) of time do the thresholds relate (e.g., most recent calendar year, fiscal year; for assets-based tests, calendar year-end, fiscal year-end, other)?

The turnover referred to in Article 7 is the aggregate turnover achieved in Belgium in the preceding financial year (art. 86 § 1 of the Act).

5.C. Describe methodology for identifying and calculating any values necessary to determine if notification is required

The turnover referred to in Article 7 is the aggregate turnover achieved in Belgium in the preceding financial year. It shall be understood in accordance with the definition of title VI of book IV of the Company Code relating to the Consolidated annual Accounts of Undertakings (art. 86 § 1 of the Act).

1. The methodology for identifying and calculating the value of the transaction, if applicable. (See point 5 C)
2. The methodology for identifying and calculating the value of relevant assets, if applicable. (See point 5 C)
3. Methodology for calculating exchange rates. (See point 5 C)

5.D. Do thresholds apply to worldwide sales/assets, to sales/assets within the jurisdiction, or both?

The thresholds (art. 7 of the Act) apply to turnover achieved in Belgium (see also under point 5 A and B).

5.E. How is the nexus to the jurisdiction determined? If based on an “effects doctrine,” please describe how this is applied.

See under point 5 A.

5.F. If national sales are relevant, how are they allocated geographically (e.g., location of customer, location of seller)?

The thresholds (art. 7 of the Act) apply to turnover achieved in Belgium (see also point 5 A).

5.G. If there are market share tests, are there guidelines for calculating market shares?

There are no market share tests in the Act in order to determine if notification is required.

5.H. If there are market share tests, do they apply even if there is no horizontal overlap in the parties' activities, either in the jurisdiction or worldwide?

Not applicable (see point 5 G).

5.I. Describe the methodology for determining relevant undertakings/firms for threshold purposes (e.g., group-wide? only the acquired entity? If based on control, how is control determined?).

(See also point 5 A and B)

(See point 4 B)

With regard to the application of Article 7 of the Act, the turnover of each of the undertakings concerned shall be calculated by adding together the respective turnover of all the undertakings belonging to the same group.

Affiliated companies within the meaning of Title VI of Book IV of the Company Code relating to the annual consolidated accounts of undertakings are considered as belonging to the same group.

As for state owned undertakings, the turnover to be taken into account shall be that of all the undertakings making up an economic unit with an independent power of decision irrespective of the way in which their capital is held or of the rules of administrative supervision applicable to them.

Where a merger consists in the acquisition of parts - whether or not constituted as legal entities - of one or more undertakings or a group of undertakings, only the turnover relating to the parts which are the subject of the transaction shall be taken into account with regard to the seller or sellers.

However, two or more transactions which take place within a two year period between the same persons or undertakings shall be treated as one and the same merger arising on the date of the last transaction (art. 86 of the Act).

5.J. Are there special threshold calculations for joint ventures?

In the Belgian legislation regulating economic competition there are no special thresholds calculations for joint ventures.

For joint ventures, the general thresholds of art. 7 of the Act are applicable.

5.K. Are there special threshold calculations for particular sectors (e.g., banking, airlines) or particular types of transactions (e.g. partnerships, financial investments)?

The thresholds (art. 7 of the Act) apply to the turnover achieved in Belgium (see also under point 5 A, B and D).

In place of turnover the following shall be used:

a) for credit institutions and other financial institutions, by the sum of the following income headings, described in the royal decree of 23 September 1992, relating to the annual accounts of credit institutions, after deduction, as applicable, of value added tax and other taxes directly linked to the said income:

1. interest and related income;
2. income on securities:
3. income on shares, stock and other variable income securities;
4. income on participating interests;
5. income on shares in affiliated undertakings;
6. commissions received;
7. net profit on financial transactions;
8. other operating income.

The turnover of a credit institution or a financial institution in Belgium shall include the income headings, defined above, of the branch or division of the said establishment, established in Belgium.

b) for insurance undertakings, by the value of the gross premiums issued which shall include all amounts received and receivable in respect of insurance contracts issued by them or on their behalf, including premiums assigned to re-insurance companies and after the deduction of taxes or special taxes received on the basis of the amount of premiums or the total volume of premiums. The gross premiums paid by residents in Belgium shall be taken into account.

(Art. 86 § 3 of the Act)

6. Transactions in which the acquiring and acquired parties are foreign: are there special rules or exemptions?

6.A. With respect to application of jurisdictional thresholds?

There are no special rules or exemptions for transactions in which the acquiring and acquired parties are foreign.

So, even for foreign parties, the general thresholds of art. 7 of the Act are applicable.

6.B. With respect to information required (e.g., information submitted or document legalization)?

Not applicable see 6 A

6.C. With respect to waiting periods?

Not applicable see 6 A

7. Simplified procedures

Describe any special procedures for notifying transactions that do not raise competition concerns (e.g., short form, simplified procedures, advanced ruling certificates, waivers, etc.).

The notifying parties may request the use of the simplified procedure.

When the competition prosecutor reaches the conclusion that the conditions for the application of the simplified procedure are satisfied and that there are no objections to the notified concentration, he or she shall record that in a letter to be sent to the notifying parties. The competition prosecutor shall transmit at the same time a copy of that letter to the Council for publication.

When the competition prosecutor reaches the conclusion that the conditions for the application of the simplified procedure are in his or her opinion not satisfied or that there are doubts as to the permissibility of the concentration, he or she shall record his or her decision in a letter, setting out the reasons for his or her decision in summarised from, to be sent to the notifying parties, with a copy to the Council.

This letter must be send within 20 working days after receiving the notification. In the absence of such a letter the concentration is deemed to be authorized.

There is no separate right of appeal against this letter.

This letter from the competition prosecutor shall terminate the simplified procedure, and as a result articles 55 to 59 shall once again apply in full. The notification shall be considered as incomplete from the beginning within the meaning of article 55, § 1. The notification shall be deemed to be complete on the day after that when the notifying parties supply the missing information mentioned in the competition prosecutor’s letter (art.61 §1, 3 and 5).

See also form for simplified procedure conc. C/C – V/S

8. Timing of notification

8.A. What is the earliest that a transaction can be notified (e.g., is a definitive agreement required; if so, when is an agreement considered definitive?)?

The concentrations covered by this law shall be notified to the college of competition prosecutors before their implementation and after the conclusion of the agreement, publication of the takeover bid or public offer of exchange, or of the acquisition of a controlling interest.

The parties may however notify a proposed agreement provided that they declare explicitly that they intend to conclude an agreement which does not differ significantly from the notified proposal as regards all the relevant points of competition law. In the case of a takeover bid or a public offer of exchange, the parties may also notify a project when they have announced publicly their intention to make such a bid or offer (art. 9 § 1 of the Act).

8.B. Must notification be made within a specified period following a triggering event? If so, describe the triggering event (e.g., definitive agreement) and the deadline following the event.

(See point 8 A)

9. Documents to be submitted

9.A. Describe the types of documents that parties must submit with the notification (e.g., agreement, annual reports, market studies, transaction documents).

The completed notification must be accompanied by the following documents:

Notifying parties must provide the following documents:

1. copies of the final or most recent versions of all documents constituting the concentration, whether by way of an agreement or proposed agreement between the parties to the concentration, the acquisition of controlling interests or a takeover bid;
2. in the case of a takeover bid, a copy of the offer document. If this document is unavailable at the time of notification, it must be submitted as soon as possible and no later than when it is sent to shareholders;
3. copies of the most recent articles of association, annual reports and accounts of all the parties to the concentration;
4. a document issued by the works council of each of the notifying parties certifying that the works council has been informed of the operation in accordance with Belgian regulations on the information to be provided to works councils;
5. a list of the representatives of the most representative employee organisations or the employee representatives, including their contact details, for each undertaking;
6. copies of all analyses, reports, studies, surveys or any other comparable documents prepared by or for a member or members of the board of directors or the supervisory board, or any other person exercising similar functions (or to whom such functions have been delegated or entrusted) or of the general meeting of shareholders, for the purpose of assessing or analysing the concentration with regard to market shares, competitive conditions, competitors (actual and potential), the rationale of the concentration, the potential for sales growth or expansion into other product or geographic markets, and/or general market conditions.

For each of these documents, indicate (if the information is not shown in the document itself), the date of preparation, as well as the name and title of each individual who prepared each such document.

(Form CONC C/C 1, point 5)

9.B. Are there any document legalization requirements (e.g., notarization or apostil)?

See point 9 A:

10. Translation

Describe any requirements to submit translations of documents with the initial notification, or later in response to requests for information, including the categories or types of documents for which translation is required, requirements for certification, language(s) accepted, and whether selected excerpts are accepted in lieu of complete documents.

The notification must be completed in French or Dutch in accordance with article 93 of the Act. This language will thereafter be the language of the proceedings for all the notifying parties.

The annexed documents are to be submitted in their original language; where this is not one of the national languages or English, they must be translated into the notification language.

(Form CONC C/C 1, point 1.4) (art. 93 of the act)

11. Review and waiting periods / Suspensive effects

11.A. Describe any applicable review and/or waiting periods following notification, including whether closing is suspended during any initial review or waiting period and/or further review periods (i.e., second-phase proceedings).

If the concentration falls within the scope of application of this law, the chamber of the Council hearing the case shall adopt one of the following reasoned decisions:

First phase

1° either it may decide that the concentration is permissible.

It may make its decision subject to conditions and/or obligations intended to ensure that the undertakings concerned respect the commitments that they have presented for the concentration to be declared permissible. When the chamber of the Council hearing the case wishes to take into consideration conditions and/or obligations that are not discussed in the report, the undertakings concerned and the competition prosecutor shall be heard on this point and shall have at least two working days to communicate their views in this regard. The notifying parties may modify the conditions of the concentration, up to the time when the Council chamber hearing the case has taken its decision. In such a case, the permissibility decision shall relate to modified concentration;

2° or it declares the concentration permissible when the undertakings concerned do not control together more than 25% of any relevant market for the transaction, regardless whether it concerns horizontal or vertical relationships;

3° or it may decide that there are serious doubts about the permissibility of the concentration and decide to initiate the supplementary investigation procedure referred to in article 59.

The Council’s decisions referred to in indent 1 shall be pronounced within 40 working days after the day following the day on which the notification is received, extended if applicable, pursuant to article 55, § 1. This time limit shall be extended by 15 working days when the undertaking concerned provides commitments, with a view to having their concentration declared permissible.

The concentration shall be deemed permissible when the Council has not pronounced its decision within the time limit specified in indent 2.

Second phase

Art. 59. § 1. If the Council chamber hearing the case adopts the decision referred to in article 58, § 2, indent 1, 3°, the competition prosecutor shall carry out a supplementary investigation and submit a supplementary report to the Council division hearing the case.

§ 6. The division’s decision on the admissibility of the concentration shall be pronounced within 60 working days after the decision to initiate the procedure, if applicable extended in accordance with § 2. Its decisions may be made subject to conditions and/or obligations, with a view to ensuring that the undertakings concerned respect the commitments presented by them in order for the concentration to be declared permissible. When the Council division hearing the case wishes to take into consideration conditions and/or obligations which are not discussed in the report, the undertakings concerned and the competition prosecutor shall be heard on this point and shall have at least two working days to express their views in this regard.

The concentration shall be deemed to be approved when the Council has not pronounced its decision within the time limit of 60 working days, extended if applicable in accordance with § 2, where the undertakings concerned present commitments in accordance with § 2.

The time limit may only be extended at the express request of the parties, and for a period which may not exceed that proposed by the parties. The Council division hearing the case shall in any event grant an extension of 20 working days, as well as a new hearing at the request of the notifying parties in order to allow them to present new commitments.

Art. 60. § 1. Within 30 working days after the notification of the Council’s decision to the notifying parties and to the chancellery of the prime minister, the Council of Ministers may authorise the implementation of a concentration for reasons of general interest which outweigh the risk of competition being undermined as recorded in the decision of the Competition Council. The Council of Ministers may also overturn totally or in part any conditions and obligations imposed by the Competition Council.

§ 2. The Council of Ministers shall rule at its own initiative or at the request of the notifying parties.

§ 3. The decision of the Council of Ministers shall be adopted within 30 working days after the notification of the Competition Council’s decision and solely on the basis of that decision. If the Council of Ministers fails to pronounce a decision within that period of time, it shall be deemed not to have authorised it.

The King may, after consultation with the Competition Council, modify the periods referred to in art.58 § 2 (first phase) and art. 59 § 6 (II phase, 60 days) of the Act.

He may also determine the conditions of suspension of said periods: In the event that it proves necessary to translate particular documents.

(art. 58, 59 en 60 of the Act)

11.B. Are there different rules for public tenders (e.g. open market stock purchases or hostile bids)?

There are no different rules for public tenders.

§5The preceding paragraph shall not however prevent the implementation of a takeover bid or a public offer of exchange or operations by which control within the meaning of article 6 is acquired through the intermediary of several sellers through a series of transactions in financial instruments, including those which are convertible into other financial instruments, listed on a market such as a stock market, provided that:

1° the concentration is notified without delay to the body of administrative prosecutors on competition in accordance with this article, and,

2° the purchaser does not exercise the voting rights attached to the participating interests concerned or exercises them only to protect the full value of its investment and on the basis of a derogation granted by the competent Council division in accordance with § 6.

(art. 9 § 5 of the act)

11.C. Are the applicable waiting periods limited to aspects of the transaction that occur within the jurisdiction (e.g., acquisition or merger of local undertakings/business units)? If not, to what extent do they apply to the parties’ ability to proceed with the transaction outside the jurisdiction? Describe any procedures available to permit consummation outside the jurisdiction prior to the expiration of the local waiting period and/or clearance. (e.g. request for a derogation from the bar on closing, commitment to hold separate the local business operations.)

The Act is only concerned with the impact of transactions in Belgium. But the waiting periods affect all aspects of transactions that affect a relevant market in Belgium, regardless of the location of assets or activities.

§ 6. Without prejudice to the provisions set out in § 5, the Council chamber hearing the case may, at any time, if requested by the parties, grant a derogation to the obligations laid down in § 4. In this case, the Council chamber hearing the case shall request the competition prosecutor to submit, within two weeks after such a request has been submitted, a report specifying the elements necessary for the examination of the request with a view to reaching the decision referred to in this paragraph.

(Art. 9, §6 of the Act)

11.D. Describe any provisions or procedures available to the enforcement authority, the parties and/or third parties to extend the waiting period. Is there a statutory maximum for extensions of the review period by the authority?

The period referred to in art.58 § 2 (first phase) and art. 59 § 6 (II phase, 60 days) of the Act may be extended only at the express request of the parties and for no longer than proposed by them.

(Art 58, § 3, Art. 59 § 6 of the Act)

There is no statutory maximum for extensions of the review period by the authority.

(Art 58, § 3, Art. 59 § 6 of the Act)

11.E. Describe any procedures for obtaining early termination of the applicable waiting period, and the criteria and timetable for deciding whether to grant early termination.

§ 6. Without prejudice to the provisions set out in § 5, the Council chamber hearing the case may, at any time, if requested by the parties, grant a derogation to the obligations laid down in § 4. In this case, the Council chamber hearing the case shall request the competition prosecutor to submit, within two weeks after such a request has been submitted, a report specifying the elements necessary for the examination of the request with a view to reaching the decision referred to in this paragraph.

(See also under point 11 A)

11.F. Describe any provisions or procedures allowing the parties to close at their own risk before waiting periods expire or clearance is granted (e.g., allowing the transaction to close if no "irreversible measures" are taken).

See answer under point 11 C.

12. Responsibility for notification/ representation

12.A. Who is responsible for notifying – the acquiring person(s), acquired person(s), or both?

In the case of a merger within the meaning of article 6, § 1, 1°, of the law or in the case of the acquisition of joint control of an undertaking within the meaning of article 6, § 1, 2°, of the law, the notification shall be presented jointly by the parties to the concentration or by those acquiring joint control, as the case may be.

In the other cases, the party implementing the concentration must present the notification (article 9, § 2).

12.B. Do different rules apply to public tenders? (e.g. open market stock purchases or hostile bids)

In the case of a takeover bid for an undertaking, the bidder must complete the notification.

(Form CONC-C/C-1, point 1.2)

12.C. Are the parties required to appoint a joint representative?

In the event of a joint notification, such notification must be given by a joint representative, with powers to transmit and receive documents on behalf of all the notifying parties.

(Art. 2 § 3 of the Royal Decree of 31 October 2006 relating to the notification of mergers of undertakings referred to in Article 9 of the Act )

12.D. Are there any rules as to who can represent the notifying parties (e.g., must a lawyer representing the parties be a member of a local bar)?

No

§ 2. When the notification is signed by representatives of natural or legal persons, the said representatives must present a written power of attorney confirming their power of representation.

§ 3. In the event of a joint notification, such notification must be given by a joint representative, with powers to transmit and receive documents on behalf of all the notifying parties.

(Art. 2 § 1- 3 of the Royal Decree of 31 October 2006 relating to the notification of mergers of undertakings referred to in Article 9 of the Act )

12.E. How does the validity of the representation need to be attested (e.g., power of attorney)? Are there special rules for foreign representatives or firms? Must a power of attorney be notarized, legalized or apostilled?

When the notification is signed by representatives of natural or legal persons, the said representatives must present a written power of attorney confirming their power of representation.

(Art. 2 § 2 Royal Decree of 31 October 2006 relating to the notification of mergers of undertakings referred to in Article 9 of the Act)

13. Filing fees

13.A. Are any filing fees assessed for notification? If so, in what amount and how is the amount determined?

There are no filing fees for the notification of a merger.

13.B. Who is responsible for payment?

Not applicable (see point 13 A)

13.C. When is payment required?

Not applicable (see point 13 A)

13.D. What are the procedures or making payments (e.g., accepted forms of payment, proof of payment required, and wire transfer instructions)?

Not applicable (see point 13 A)

14. Confidentiality

14.A. To what extent, if any, does your agency make public the fact that a premerger notification filing was made or the contents of the notification?

The college competition prosecutors shall transmit, upon receipt, an abstract of all notifications of a concentration for publication in the Belgian Official Gazette and on the website of the Competition Council. This publication shall include the names of the undertakings that are parties of the concentration. The publication shall indicate whether the application of the simplified procedure has been requested (art. 68 § 1 of the Act)

14.B. Do notifying parties have access to the authority’s file? If so, under what circumstances can the right of access be exercised?

§ 4. The report shall be submitted within 25 working days with effect from the day after the day when the notification is submitted to the body of administrative prosecutors on competition.

§ 5. The competition prosecutors shall transmit, when filing the report as per § 4, a copy of the report to the notifying parties. The prosecutor shall also transmit, after the business secrets and confidential information have been removed, a copy of the report to the representatives of the most representative employee organisations of the undertakings involved or to those that they designate.

The prosecutor shall inform the persons referred to in the first indent that they may consult the file at the registry, except for the documents which are confidential with regard to them, and obtain a copy against payment.

The King determines the rules of procedure before the Council and the conditions under which copies may be obtained.

(Art. 55, §4 en §5 of the Act)

(art. 57 § 5 of the act)

14.C. Can third parties or other government agencies obtain access to notification materials? If so, under what circumstances?

Nor third parties, nor government agencies can obtain access to notification materials.

(Art. 57 §2 of the Act)

14.D. Are procedures available to request confidential treatment of the fact of notification and/or notification materials? If so, please describe.

The competition prosecutors shall be responsible for:

at the request of interested natural or legal persons, or on their own initiative, ruling on the confidential nature of data provided to the Competition Service or to the college of competition prosecutors during the procedure;

The college of competition prosecutors or the administrative prosecutor shall draw up a list of all the documents and data collected during the investigation and rule on their confidentiality.

The confidential nature of the data and documents shall be determined with regard to each natural or legal person to whom the reasoned report is notified.

When the college competition  prosecutors  or the competition prosecutor is of the opinion that data which have been described as confidential by the natural or legal persons that supplied them, are not confidential with regard to the undertaking concerned, he or she shall inform, by letter, fax or electronic mail, the natural or legal persons of his or her position and invite them to state their position on this point by letter, fax or electronic mail within a time limit determined by him or her.

The college of competition prosecutors or the administrative prosecutor shall then rule. The college of competition prosecutors or the administrative prosecutor may decide that the interest of ensuring the effective application of this law should prevail over the confidential nature of the data in question. The college of competition prosecutors or competition prosecutor shall then notify the decision to the natural or legal persons having supplied the data in question.

When the college of competition prosecutors or the competition prosecutor accepts the confidential nature of the data, he or she shall require, by a deadline fixed by him or her, the natural or legal person having supplied the data, to draw up a summary or a non-confidential version of the document in question, if such a summary or non-confidential version is not already in the file. The confidential documents shall then be removed from the file and replaced by the summary or non-confidential version.

When the prosecutor rejects the confidential nature of the data, he or she shall inform the natural or legal person that supplied the data of his decision, indicating the reasons why he or she does not consider the data in question to be confidential. This decision shall be notified by letter, fax or electronic mail.

The natural or legal person having supplied the said data may, within 10 days after notification of the decision of the college of competition prosecutors or the competition prosecutor, appeal against the said decision to the Council. This time limit for lodging such an appeal shall be two working days in the case of an investigation or decision concerning a concentration.

A member of the Council, designated by the president, who shall not sit in the chamber hearing the case, shall rule on the appeal within 10 days. This time limit shall be two working days in the case of an investigation or decision concerning a concentration. A separate appeal may not be lodged with the Brussels Court of Appeal against such a decision.

The college of competition prosecutors or the competition prosecutor may not communicate any confidential data before the Council adviser has ruled on the appeal.

(Art.29 §1 6° en Art.44 § 6-9 of the act)

The merits of the Competition Council's decision shall not rest on documents that have been removed from the file.

E. Is the agency or government a party to any agreements that permit the exchange of information with foreign competition authorities? If so, with which foreign authorities? Are the agreements publicly available?

Notwithstanding the provisions of article 84, within the framework of reciprocity agreements in the area of mutual assistance in respect of competition practices, the Belgian competition authority may also communicate indispensable documents and information to the competent foreign competition authorities.

(Art. 89 of the Act)

15. Sanctions/ penalties

15.A. What are the sanctions/penalties for failure to file a notification and/or failure to observe any mandatory waiting periods?

Art. 63. When it takes a decision referred to in article 52, 1°, the chamber of the Competition Council hearing the case may impose on each of the undertakings and associations of undertakings concerned, fines not exceeding 10% of their turnover, determined in accordance with the criteria referred to in article 86. In addition, it may, by the same decision, at the request of the competition prosecutor, impose on each of the undertakings and associations of undertakings concerned penalties for non-compliance with its decision, of up to 5% of the average daily turnover, determined in accordance with the criteria referred to in article 86, per day of non-compliance, with effect from the date fixed by it in its decision.

Art. 64. § 1. The chamber hearing the case may impose on persons, undertakings or associations of undertakings involved; fines of up to 1% of turnover, determined in accordance with the criteria set out in article 86 where, deliberately or by negligence:

1. they provide inaccurate or misleading information at the time of a notification or in response to a request for information;
2. they provide incomplete information;
3. they do not provide the information within the prescribed time;
4. they prevent or impede the investigations specified in article 44 as well as the inquiries referred to in article 47.

§ 2. The same fines may be imposed when an undertaking implements a concentration without prior notification in accordance with article 9, even if it transpires that the concentration is permissible.

Art. 65. In the event of an infringement of article 9, § 4, the Council division hearing the case may impose the fines referred to in article 63, § 1.

It may, in addition, impose the penalties referred to in article 63, § 1,to ensure compliance with the order referred to in article 59, § 7.

(Art. 63, 64 and 65 of the act)

Art. 67. The decisions of the Council and its president shall be notified by the registry by recorded delivery letter to the parties, the complainants and the minister, as well as to any person who can demonstrate an interest in accordance with article 48, § 5, indent 3 or article 57, § 2 and who has requested to be heard by the Council.

15.B. Which parties are potentially liable?

See point 15 A

16. Judicial review

Describe the provisions and timetable for judicial review or other rights of appeal/review of agency decisions on merger notification and review.

The decisions of the Competition Council and of its President may be subject to appeal before the Court of Appeal in Brussels. The decisions by which the Competition Council remits the matter to the administrative prosecutor and those by which the President of the Council removes items from the file shall not be subject to a separate appeal.

The appeals may be lodged by the parties involved before the Council, by the complainant or by any person showing an interest who has asked to be heard by the Council. An appeal may also be lodged by the Minister without his showing any interest.

On pain of automatic inadmissibility, appeals shall be lodged by means of a signed application with the Registrar's Office of the Court of Appeal in Brussels within thirty  days of the notification of the decision and, so far as third parties are concerned, within thirty days of its publication.

The decisions of the Council of Ministers on mergers may be the subject of an action for annulment before the Council of State.

The appeal shall be lodged to the Registrar's Office of the Council of State by means of an application within thirty days of the notification or the publication in the Belgian Official Gazette.

(Art. 75, Art. 76 §1, §2 and Art.77 § 1 of the Act)

17. Additional filings

Are any additional filings/clearances required for some types of transactions, e.g., foreign investment or regulated sectors?

No additional filings/clearances are required for certain types of transactions.

18. Closing deadlines

When a transaction is cleared or approved, is there a time period within which the parties must close for it to remain authorized?

When a transaction is cleared or approved, there is no time period within which the parties must close for it to remain authorized.