The Act of 19 March 2024 gives new powers to the Belgian Competition Authority to support the European Commission’s competences under the Digital Markets Act

On 28 March 2024, the Belgian Federal Chamber of Representatives adopted a new act implementing Regulation (EU) 2022/1925 of the European Parliament and of the Council of 14 September 2022 on contestable and fair markets in the digital sector and amending Directives (EU) 2019/1937 and (EU) 2020/1828 (“Digital Markets Act”), as well as amending various provisions related to the organisation and powers of the Belgian Competition Authority (the “Act”). The Act primarily grants more powers to the Belgian Competition Authority (the “BCA”) to improve its efficiency and allow it to adequately support the European Commission (“EC”) when the latter applies and enforces the DMA. The Act will enter into force ten days after its publication in the Belgian Official Gazette.

Introduction

The Act pursues four different objectives.[1] First, it aims to implement the Digitial Markets Act (the “DMA”) into Belgian law. Although the DMA is in principle directly applicable in all EU Member States, certain provisions must be implemented in national law to ensure legal certainty. Second, the Act aims to improve the efficiency of the BCA’s procedures, for example by providing a duty to cooperate for individuals requesting immunity, clarifying the starting point of the one-month period to reply to the draft decision submitted by the BCA’s prosecution service and giving the parties the right to copy, from the BCA’s file, preexisting documents on which a leniency request is based. Third, the Act adds a fifth member to the BCA’s Management Committee, namely the Planning and Budget Director, who will, however, not have any decision-making powers on the application of competition law. Finally, the Act excludes mergers between approved hospitals within the meaning of the coordinated law of 10 July 2008 on hospitals and other care institutions from prior merger control by the BCA, except for mergers between approved hospitals that meet specific notification thresholds.

To achieve these ends, the draft Act amends Books I and IV of the Code of Economic Law (“CEL”) as well as other relevant legislation. The present contribution focuses on the Act’s provisions related to the DMA’s implementation into Belgian law. Further information on the amendments related to the rules applying to mergers between approved hospitals can be found here.

New powers granted to the BCA in the context of the DMA

The DMA grants new powers to the EC to ensure the effective application and enforcement of the obligations that the DMA imposes on designated gatekeepers regarding their core platform services. Although the EC is the sole enforcer of the DMA’s rules, it will cooperate and coordinate closely with, among others, the national competition authorities of the different EU Member States, such as the BCA.

The Act reorganises the existing Book IV of the CEL to include a specific section “Title 4. Application of Regulation (EU) 2022/1925”, which concerns the BCA’s competences under the DMA.

We set out below an overview of the BCA’s most relevant new competences within the DMA’s scope.

1. THE RIGHT TO RECEIVE INFORMATION ON CONCENTRATIONS AND USE THAT INFORMATION TO REFER A CONCENTRATION TO THE EC (MODIFIED ARTICLE IV.16 CEL)

Under Article 14 DMA, a gatekeeper will inform the EC of any intended concentration within the meaning of Article 3 of Regulation (EC) No 139/2004 (the “Merger Regulation”), where the merging entities or the target of the concentration provide core platform services or any other services in the digital sector or enable the collection of data, irrespective of whether it is notifiable to the EC under the Merger Regulation or to a competent national competition authority under the national merger rules. The EC will inform the BCA of such information received and publish annually the list of acquisitions about which gatekeepers have informed it. Based on that information and if applicable, the BCA can refer a concentration to the EC in accordance with Article 22 Merger Regulation.

Additionally, the BCA could also decide to investigate the concentration itself under the recent so-called Towercast doctrine. In its Towercast judgment, the European Court of Justice ruled that national competition authorities and courts can review acquisitions by dominant entities under abuse of dominance rules, even if those acquisitions are not notifiable under EU or national merger control rules. In this regard, it is notable that the BCA was the first national competition authority to apply the Towercast doctrine in 2023 in the Proximus/EDPnet case and could therefore do so again in the future.

2. THE RIGHT TO OPEN AN INVESTIGATION INTO NON-COMPLIANCE BY A GATEKEEPER OF DMA OBLIGATION(S) (MODIFIED ARTICLE IV.26 §3 CEL AND NEW ARTICLE IV.96 CEL)

Under Article 38(7) DMA, the BCA’s Prosecutor General has the power to open an investigation on his/her own initiative concerning non-compliance by a gatekeeper with Articles 5, 6 and 7 DMA. Although the EC is the only authority empowered to enforce the DMA, it is possible for the Member States, in their support role to the EC, to empower their competent national authorities to investigate possible cases of non-compliance by gatekeepers that have certain obligations under the DMA. This might be particularly justified where it is not possible to determine from the outset whether a gatekeeper’s behaviour is likely to constitute an infringement of the DMA, the competition rules, or both.

Indeed, the national competition authorities, such as the BCA, remain fully competent to enforce national and EU competition law, in particular Articles 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”) and Articles IV.1 and IV.2 CEL. Moreover, the DMA is also without prejudice to other national competition rules regarding unilateral conduct, such as the Belgian prohibition on abuses of economic dependence contained in Article IV.2/1 CEL. Please note that under Belgian law the existence of the prohibition on abuses of economic dependence already allows for penalising certain types of conduct of undertakings that do not have a dominant position.

In that regard, the BCA has in its enforcement priorities for 2023 stressed that it would be particularly alert to possible abuses of dominance, abuses of economic dependency and competition law infringements resulting from the digital transformation in several sectors, particularly in the services sector, including services to businesses and public authorities.

The BCA may make use of the powers referred to in Articles IV.40 to IV.40/5 CEL to gather information relevant to the investigation (collecting all relevant information through requests for information, investigating infringements, conducting inspections (dawn raids), designating experts).

Before taking a first formal investigative measure, the BCA must inform the EC in writing of its intention to do so.

3. The obligation to respect professional secrecy and confidentiality under the DMA (modified Article IV.32 CEL)

The BCA’s professional secrecy is extended to investigations opened and conducted by the BCA’s Prosecutor General concerning non-compliance by a gatekeeper with Articles 5, 6 and 7 DMA as well as concerning BCA staff members’ participation in the High-Level Group and the Advisory Committee referred to in Articles 40 and 50 DMA.

4. The obligation to inform the EC if the BCA is conducting an investigation under competition law involving a gatekeeper or if it intends to impose obligations on a gatekeeper (modified Article IV.78/1 CEL)

The BCA must inform the EC that it is conducting an investigation under competition law involving a gatekeeper or that it intends to impose obligations on a gatekeeper. This new obligation is incumbent on the auditor (the notification of the first formal investigative measure), the Prosecutor General or the Competition College (the imposition of obligations on the gatekeeper), as the case may be. These information mechanisms do not apply to decisions contemplated under the national merger rules.

5. The right to designate the members of staff who will be entrusted with assistance missions in support of the EC (new Article IV.97 CEL)

The Prosecutor General may designate the BCA staff members who will be entrusted with assistance missions in support of the EC under the DMA.

The assistance missions are the following:

• Assisting and supporting the EC in its market investigations (Article 16(5) and Article 38(6) DMA);
• The obligation to provide the EC with all the information in the BCA’s possession that is necessary for performing the tasks assigned to it by the DMA (Article 21(5) DMA);
• The BCA can request the EC assist it in a hearing taking place in Belgium (Article 22(2) DMA);
• Assisting with conducting inspections if these are to be carried out in Belgium (Article 23(3) DMA);
• The EC designating BCA staff members to assist it in monitoring the obligations and measures imposed by the DMA and to provide it with specific expertise and knowledge (Article 26(2) DMA).

6. Cooperation and exchange of information within the ECN (new Article IV.98 CEL)

The EC and the BCA will cooperate with each other and exchange information about their respective enforcement activities through the European Competition Network (“ECN”). They have the power to provide each other with any information relating to a matter of fact or law, including confidential information.

7. The right to receive complaints in the context of the DMA (new Article IV.99 CEL)

The BCA, particularly the Prosecutor General, may receive complaints from all third parties, including business users, competitors or end users of a gatekeeper’s core platform services, as well as their representatives, regarding any practice or behaviour falling within the DMA’s scope.

The Prosecutor General has full discretion concerning the appropriate measures to be taken and is not obliged to act on the information received. If, based on the information received, the Prosecutor General considers that there may be a case of non-compliance with the DMA, then he/she must forward this information to the EC.

8. The right to request the opening of a market investigation (new Article IV.100 CEL)

The Prosecutor General may request a market investigation in the following circumstances:

• In his/her opinion, there are reasonable grounds to suspect that an undertaking should be designated as a gatekeeper;
• In his/her opinion, there are reasonable grounds to suspect that a gatekeeper has systematically infringed one or more of the obligations laid down in Articles 5, 6 and 7 DMA, and that it has maintained, strengthened or extended its position as a gatekeeper;
• In his/her opinion, (a) more digital services should be added to the list of core platform services set out in Article 2(2) DMA, or (b) that the DMA does not effectively address one or more practices and that these practices are likely to limit the contestability of core platform services or to be unfair.

9. Representing Belgium in the Digital Markets Advisory Committee (new Article 101 CEL)

The BCA will represent Belgium on the Digital Markets Advisory Committee under the DMA. The BCA will be represented by its President, or a member of its Management Committee or staff designated by it. The BCA’s President may invite one or more representatives of other authorities that have expertise in a specific subject submitted to the Advisory Committee (i.e. the Data Protection Authority, FPS Economy, etc.).

As a reminder, the Digital Markets Advisory Committee must, among other things, issue opinions before an individual implementing decision is taken concerning a gatekeeper or before implementing acts that are adopted dealing with the practical aspects of procedures established by the DMA.

Entry into force

The new Act will enter into force 10 days after it is published in the Belgian Official Gazette. Although to date the Act has not yet been published, it is anticipated that it will enter into force in April or May of 2024.

Conclusion

It is noteworthy that the Act’s sole aim is to implement the DMA’s provisions related to the cooperation, assistance and communication between the EC and the BCA. So, it describes the general new competences allocated to the BCA in that regard. However, it does not contain any provisions regarding the obligations imposed on gatekeepers under Articles 5, 6, 7 DMA, nor does it contain any other substantive provisions complementing the DMA.

Aside from the BCA’s new competences and prerogatives deriving from the DMA’s implementation into Belgian law, the BCA has been showing a growing interest and willingness in monitoring practices by Belgian online platforms. One of the BCA’s stated strategic priorities in 2023 was to develop an active enforcement policy in the digital sector, while declaring that competition infringements within the digital economy will also be considered a priority. It is therefore likely that, next to the EC’s DMA enforcement at the European level (with the assistance and support of national competition authorities like the BCA), the BCA will have its own reinforced active role in assessing online platforms’ practices and conduct in Belgium (including local platforms not falling within the DMA’s scope under competition law).

The other notable change brought about by the Act is that it introduces a turnover threshold under which mergers between authorised hospitals do not have to be notified to the BCA in accordance with the Belgian merger control rules. The BCA’s jurisdiction will from now on be limited to transactions among parties that achieve a turnover of at least EUR 250 million individually and EUR 900 million collectively. These changes are discussed in more detail here.

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[1] A copy of the full text of the Act can be found here: https://www.dekamer.be/FLWB/PDF/55/3813/55K3813003.pdf.

Written by

• Carmen Verdonck

  Partner

• Nina Methens

  Associate