Competition Act Amendments: Greater Scope for Policy Decisions in Investigations 

June, 2009 - Carmen Verdonck

On May 6, 2009, the Belgian legislature amended the Belgian Competition Act. Most of the amendments are of a procedural nature and are of minor importance. However, the clarification of the prescription rules and the option of dismissing cases on policy grounds catch the eye. The amendments entered into force on May 29, 2009.

The Belgian Competition Act was the subject-matter of a thorough reform in 2006. The Multi-Purpose Act of May 6, 2009 only contains 15 amendments to the Belgian Competition Act.

Firstly, the ‘Competition Service’ (‘Dienst voor de Mededinging’/’Service de la Concurrence’) is re-baptised as the ‘Competition Directorate-General’ (‘Algemene directie mededinging’/ ‘Direction générale de la concurrence’).

Amendments were also made regarding the Competition Council, an administrative court. All councillors, including the President and Vice-President are serving 6-year mandates. However, under the Belgian Competition Act, the President and Vice-President were obliged to switch mandates after three years. This rule has now been abolished. The current President therefore remains President until the end of the six year term. Furthermore, the members of the Competition Council are now granted the same immunity rights as magistrates.

More important is the right granted to the College of Prosecutors to dismiss complaints or requests if its policy is to use the resources available to it to address other priorities. Until now, every complaint or request had to be investigated to see if it was admissible and/or founded or not. The Council could only halt investigations started on its own initiative. In practice, this resulted in cases remaining “pending” for years without any investigative measures or decisions being taken. Many were then subsequently dismissed for exceeding the maximum five-year term for proceedings originally specified in the 1999 Competition Act. This amendment should reduce the number of “pending”, but inactive, cases and, and will also allow the College of Prosecutors to clearly indicate and apply its priorities.

Finally, an important amendment was made regarding the prescription period for competition law infringements. The Competition Act specifies that investigations must be started ‘within five years of the facts’. This provision has now been clarified to state that, where there have been continuous or repetitive infringements, this term only starts at the end of the infringement. This principle had already been widely accepted by legal scholars.

 


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For further information on this topic please contact Carmen Verdonck or Louise Depuydt at Altius by telephone (+32 2 426 1414) or by fax (+32 2 426 2030) or by email ([email protected] or [email protected]).


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