On 27 January 2015, the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence) ("BCA") published a notice on the handling of requests for an informal opinion by the President of the BCA (the "Notice").
Further to Article IV.20(1)2° of the Code of Economic Law (Wetboek van Economisch Recht / Code de droit économique), the President of the BCA is responsible for handling informal questions and disputes arising from the interpretation and implementation of the competition rules in cases where no formal investigation has been initiated. The Notice provides guidelines on the type of requests that will be considered by the President of the BCA and on the treatment of such requests. The Notice only applies to questions involving anticompetitive agreements and restrictive practices, since questions regarding the control of concentrations will be dealt with under the pre-notification procedure.
Under the Notice, requests for clarification will only be considered if they satisfy the following cumulative conditions: (i) the practice concerned should not simply be hypothetical but should on the other hand not yet have been implemented either (since implemented practices are handled by the College of Prosecutors (Auditoraat / Auditorat) following the standard antitrust procedure); (ii) the issue should not be identical, similar or related to a case pending before the European Commission, the College of Prosecutors, the Competition College (Mededingingscollege / Collège de la Concurrence) or any Belgian or EU jurisdiction; (iii) the request should concern a new legal issue which has not yet been settled by the BCA or by Belgian or EU regulation, case law or decisional practice; (iv) the information provided should be sufficient to enable the President of the BCA to answer the question; and (v) the question should present a sufficiently significant economic or social interest. However, even requests that meet these conditions can be dismissed by the President of the BCA for reasons of priorities and allocation of available resources.
If all the above conditions are met (the College of Prosecutors will check the first two within five days), the President of the BCA will handle the request and issue an opinion on the interpretation of competition rules. This opinion will be published on the website of the BCA, unless the protection of commercial interests requires a partial or delayed publication of the opinion, or completely precludes publication.
Finally, such opinions will not prevent the College of Prosecutors from initiating an investigation at a later stage if it finds that the information provided was inaccurate. If the ensuing investigation reaches the stage of a draft decision, the President of the BCA will not sit on the Competition College.
