Mergers in Belgium can be fast tracked using simple filing rules. The Belgian Antimonopoly Authority has published a message with additional rules regarding the simplified procedure for certain types of concentrations. As a result, companies may be eligible for simplified merger registrations in Belgium, resulting in faster approval and lower costs.
Overview of changes
Belgium has recently promulgated additional rules regarding the simplified concentration procedure. The new provisions expand on the existing regime and a simplified procedure can now be applied in the following circumstances:
- when the aggregate market share of all parties to the concentration is less than half;
- when, with the above, additional market share increases as a result of concentration by 2%.
By being eligible for simplified procedures in Belgian mergers, the firm benefits from a shorter decision-making period.
Concentration information should be communicated prior to implementation. Notice is relevant in cases where the parties explicitly state that they are seeking to conclude a definitive agreement in a merger in Belgium. The main concentration scheme and associated restrictions should be included in the draft agreement. If the competition regulator finds that the final agreement differs materially from the draft in the competition provisions, it may reject the first notice. In this case, a second notice may be required once the final agreement is signed.
If the regulator finds that the parties did not notify the concentration prior to its implementation, it can impose a fine of up to 1% of the company's total turnover in the previous financial year.
Responsibility and fees
Notification must be made jointly by the parties if the Belgian merger creates a new obligation in the event that joint control of the targeted Belgian business is acquired.
Registration fees are not charged.
The suspension obligation does not affect the execution of a securities transaction in Belgium or the execution of a public application. There are several conditions for this, namely:
- concentration information is sent without delay;
- the buyer does not exercise the voting rights assigned to the corresponding securities.
The authorities may grant an exemption from the obligation of suspension. This happened for the first time 12 years ago, when the Belgian state acquired a stake in Fortis and demanded a derogation from the obligation to suspend the transaction. This was necessary to save the bankrupt bank, and further delay could have jeopardized the bank's survival.
Completion of the transaction before obtaining permission
If the transaction has been properly notified to the regulatory authorities, but it was carried out before the permission for the merger in Belgium was obtained, the regulators can impose quite significant fines.
Level of detail when preparing an application
A significant amount of detailed information must be provided, including information about the parties, the relevant market, transaction details, and the parties' personal and financial relationships with other companies.
If the merger agreement is signed between non-resident organizations, the parties are free to choose the language of filing the application. Supporting documents must be submitted in the original language. The parties must indicate in their notification what information is a trade secret in order for it to be treated as strictly confidential.
NOTE: Parties may be fined for providing incorrect or incomplete information.
Filling out the form and preparing accompanying documents can take up to a month, depending on the complexity of the issues under consideration, the availability of the necessary information. If you are planning to start a merger in Belgium that is not a problem from a competition law perspective, a simplified notice can be filed.
Merger control enforcement continues to spread around the world and go far beyond the largest and traditionally most active performers (for example, the US, EU, China and Brazil). Outside these countries, including Belgium, the degree to which merger antitrust enforcement is a priority may vary, but tends to be more oversight overall.
Contact IQ Decision UK for advice on updates to merger control procedures in Belgium.