The missions of the Belgian Competition Authority
The Belgian Competition Authority is an independent administrative authority that contributes to the definition and implementation of competition policy in Belgium, by pursuing anticompetitive practices and reviewing the main merger operations. The BCA collaborates with the competition authorities of the other Member States of the European Union and with the European Commission within the framework of the European Competition Network (ECN).
The structure of the Belgian Competition Authority
The Belgian Competition Authority began its operations as an independent administrative authority with a legal personality on 6 September 2013. Its structure is the following:
The BCA is directed by a Managing Board (the Board). The Board is among others in charge of the institution’s daily management, the identification of priorities and management terms and the preparation of guidelines for the application of competition rules.
The Board is composed of the President, Prof. emeritus Dr Jacques Steenbergen, Competition Prosecutor General Véronique Thirion, Dr Alexis Walckiers, Chief Economist and Joachim Marchandise, General Counsel.
The BCA comprises an Investigation Service (the Investigation and Prosecution Service) and a decision-making body (Competition College). The decision-making body is the Competition College for all infringement cases that are not settled or closed by the Investigation and Prosecution Service, as well as all non-simplified merger control procedures.
The BCA President presides over the Competition College. For each case, the Competition College consists of the president and two assessors, who are appointed in alphabetical order within their language group.
By language group, the assessors are:
David Szafran, assessor vice-president (FR),
Pierre Battard, Laurent De Muyter, Alexandre de Streel, Martin Favart, Charles Gheur, Olivier Gutt, Christian Huveneers, Nicolas Petit, Elisabeth van Hecke-de Ghellinck (FR).
Caroline Cauffman, Wouter Devroe, Frank Naert, Gerben Pauwels, René Smits, Peggy Valcke, Freddy Van den Spiegel, Yves Van Gerven, Carmen Verdonck, Chris Verleye (NL).
The Investigation and Prosecution Service is led by the Competition Prosecutor General. For each opened investigation file, a team of Investigation and Prosecution Service personnel members is designated and placed under the direction of a competition prosecutor, who looks after the day-to-day management of the investigation. The Investigation and Prosecution Service’s personnel members also perform, when requested by the Competition Prosecutor General, information research work and analyses of informal complaints in order to identify potential investigation cases.
Legal powers of the BCA
The Belgian Competition Authority investigates competition restrictive practices in Belgium. On its own initiative or at the request of complainant, it investigates any case of distorted competition within a market, regardless of the business in question or the public/private status of the operators.
The Belgian Competition Authority can adopt interim measures in case of emergency, while also declaring injunctions or fines, and accept commitments within the framework of an in-depth investigation.
It also conducts the preliminary investigation of merger operations that meet the turnover thresholds.
In parallel with its missions and powers with regard to mergers and competition restrictive practices, the Belgian Competition Authority among others promotes better knowledge of competition law in Belgium through:
questions put to parliament;
providing opinions on regulatory initiatives;
contributing to the preparation of Belgian competition regulations;
collaborating with external investigations;
participating in meetings of the Commission for Competition.
Moreover, the President of the Belgian Competition Authority informally rules on questions and disputes relative to the application of competition rules in cases in which no formal investigation has been initiated (Art. IV.20, §1st 2° CEL).
The Belgian Competition Authority has no jurisdiction with regard to unfair trade practices and actions that violate normal honest commercial practices, such as selling at a loss, bargains, public auctions, comparative advertising, remote contracts, liquidations and practices covered by Book VI of the Code of Economic Law on market practices and consumer protection. Such matters fall within the scope of the ordinary courts.
The priorities of the Belgian Competition Authority
The Board determines the provisions for the implementation of competition policy and the priorities. These provisions (in French) are published each year.
The formal procedures for pursuing infringements constitute the backbone of the BCA’s deterrent mechanism. To make the best use of its resources, it concentrates its efforts in areas where they are expected to provide the greatest benefit, while also pursuing a fair balance
between relatively simple cases in which the most blatant infringements are pursued and more complex or innovative cases that add to the case law;
between cartel agreements, vertical restrictions and abuse of dominant positions;
between cases that can be completed relatively quickly and cases that require lengthier periods for investigation;
between various economic sectors, with a view to guaranteeing a balance between strategic sectors with a macro-economic importance and other sectors in which competition law is equally applicable.
Like other competition authorities, the BCA considers four factors when assessing its interest in a case:
Impact—The Authority attempts to assess the damages directly caused by the alleged infringement within the sector in which it was committed, not only in terms of the applied price, but also from the effects on product quality or consumer services. It also considers various indirect effects, such as deterring other infringements within related sectors, or the effects on the value chain when the alleged infringement affects the operation thereof.
Strategic importance—Investigating an alleged infringement can, for example, be of strategic importance for the BCA because the affected sector has been identified as a priority (see below), or because it wants to clarify an interpretation of the law, with this case setting a precedent. However, if the Authority considers that other institutions are better suited to address the identified problem, its strategic importance is reduced.
Risks—The BCA is less inclined to devote resources to investigating an infringement if there is a significant risk that the investigation may come to nothing.
Resources—The BCA also considers the resources needed to initiate or continue an investigation, while determining the timetable for investigation.
The Belgian Competition Authority cooperates with other competition authorities within the European Competition Network (ECN), the European Competition Authorities (ECA) and the International Competition Network (ICN).
This cooperation involves the infringement procedures and mergers discussed within the European consultative committees (Regulations (EC) No 1/2003 and No 139/2004) as well as the Belgian contribution to the various ECN working groups.
The BCA also participates in the activities of the OECD Competition Committee (for which the BCA president is an executive committee member), of the ECA and of the ICN. The cooperation goes beyond just these institutionalised contacts. The regular contacts between Chief Economists are a good example of this.