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Belgian legislator introduces a filing fee for merger control notifications to the Belgian Competition Authority

The Belgian Chamber of Representatives recently approved a draft law transposing EU Directive 2019/1 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market.

The Law of 28 February 2022 (the Law) was published in the Belgian Official Gazette on 7 March 2022, and will come into force ten days after publication (ie on 17 March 2022).

The Law brings about several changes to Book IV of the Code of Economic Law containing the provisions on competition law. One of the key amendments is the introduction of a filing fee of EUR52,350 for merger control notifications under the normal procedure, and of EUR17,450 for merger control notifications under the simplified procedure. These amounts will be automatically indexed (using the consumer price index) as of 2023 and may be amended by Royal Decree. Given that the Belgian Competition Authority (the BCA) relaxed the simplified procedure conditions at the beginning of 2020, the vast majority of merger control cases should be able to benefit from the lower filing fee (ie EUR17,450).

The filing fee will be payable by the notifying party(-ies), who will be the acquirer(s) (in an acquisition), the merging parties (in a merger), or the parent companies (on the creation of a full function joint venture). In the case of multiple notifying parties, the filing fee will be payable by each party in equal parts. The payment collection procedure, which will take place under the auspices of the FPS Finance, is prescribed in more detail in the Law.

The introduction of a filing fee for merger control notifications aims to refinance the BCA. The BCA has stated for years that it has too few resources and does not have the necessary capacity to carry out its tasks of general interest – including the supervision of concentrations. Therefore, the new measure is intended to partially fund the BCA without the need for significant state resources. Indeed, according to previous declarations by the cabinet office of the Minister of Economy (Pierre-Yves Dermagne), the measure is expected to generate approximately EUR800,000 per year, and it will be supplemented by an additional amount of EUR600,000 from the state budget. This is a non-negligible increase (EUR1.4 million) to the BCA’s budget, which currently amounts to approximately EUR7.5m. As such, the new filing fee should respond to the EU requirement to provide adequate resources to national competition authorities, as set out in EU Directive 2019/1, and strengthen the independence of the BCA.

The President of the BCA, Jacques Steenbergen, has previously commented that additional resources would allow the BCA to improve its functioning. In particular, he has suggested that the increase may enable the BCA to set up a specific merger control team (bound by strict deadlines) and thus permit other staff members to focus on antitrust investigations. According to the cabinet office of the Minister of Economy, this would have a positive impact on the state budget in the long term (as, amongst other things, the refinancing of the BCA should increase the contribution of fines to the state coffers).