The Belgian Competition Authority Steps Up Its Merger Control and Cartel Enforcement Activities

Under its new leadership, the Belgian Competition Authority (BCA) has stepped up its enforcement activities and launched a number of initiatives and investigations that put it at the forefront of competition law developments in the European Union.

This article provides an overview of the BCA’s recent enforcement practice and explains what it means for businesses going forward.

I. And then there was Towercast – the BCA expands its merger control powers

On 16 March 2023, the European Court of Justice (ECJ) gave a preliminary ruling in the Towercast case, stating that it is possible for a national competition authority to investigate a merger under the rules on abuse of dominance where the merger would otherwise escape scrutiny under national merger control laws. In other words, it is possible for a company to abuse its dominant market position by acquiring another company.

Less than a week later, on 21 March 2023, the BCA opened an investigation into the acquisition of EDPnet, a broadband communications services provider, by Proximus, the incumbent Belgian telecommunications network operator. In its press release, the Prosecutor General explicitly referred to the Towercast judgment, making it the first such investigation following this important ECJ ruling. The Prosecutor General also ordered, for the first time on its own initiative, interim measures to ensure that Proximus did not proceed with the implementation of the acquisition during the investigation. In the end, the deal was abandoned before the BCA could complete its investigation and adopt a decision.

In January this year, the BCA went one step further. On 22 January 2025, the BCA announced that it had opened an investigation into Dossche Mills’ acquisition of the artisanal flour business of its main competitor, Ceres. The transaction followed a first acquisition attempt, made in 2019, at which time the BCA raised serious doubts about a merger of the two companies, referring the case to a phase 2 in-depth investigation, which ultimately led to the abandonment of the transaction. This time around, the merger was not notifiable, as the Belgian turnover thresholds were not met. Because Dossche Mills is not dominant, the BCA invoked Article 101 TFEU, which prohibits restrictive agreements, claiming that the transaction would have significant anticompetitive effects. In its press release, the BCA again explicitly referred to the Towercast judgment, which, although it was made in the context of an Article 102 TFEU abuse of dominance case, nevertheless also refers to the application of Article 101 TFEU.

The parties decided to abandon the transaction two months into the BCA’s investigation, after having been informed about the preliminary conclusions. The BCA therefore announced that it was “considering closing” its investigation (see press release).

II. The BCA discovers its arsenal – general or sectoral investigations

General or sector inquiries are a useful tool for competition authorities. They allow them to assess the market conditions in a particular sector of the economy when there are indications of market distortions in that sector. They also provide an opportunity for authorities to build up sector-specific knowledge and often form the basis for further investigations into specific companies, or lead to recommendations to the legislator for changes to the legal framework to remedy general shortcomings. For example, the German competition authority used a sector inquiry to understand the online advertising market before investigating Google for an abuse of dominance in this sector. The French authority conducted an inquiry into artificial intelligence last year.

Now, for the very first time, the BCA has also launched a general inquiry: on 6 February 2025, the BCA announced its general inquiry into sectoral price revision and indexation mechanisms in the Belgian economy. The aim of the inquiry is to determine the extent to which price revision or indexation mechanisms contribute to inflation in Belgium and whether any of these mechanisms are of concern from a competition law perspective, in particular with regard to coordination and collusion risks in the light of increased price visibility in the market.

The BCA’s general inquiry will be cross-sectoral, identifying existing types of sectoral price review and indexation mechanisms and examining how these practices may affect the price level of the products and services of the undertakings concerned and the more general price level in certain categories of goods and services. At the end of the inquiry, which is expected to take between 12 and 14 months, the BCA will publish a report setting out its findings, including, where appropriate, recommendations for improvement of the existing regulatory framework.

The BCA has also indicated that it intends to conduct regular sector inquiries in the future. In addition, at a recent conference, the President of the BCA expressed support for a so-called New Competition Tool (NCT), which already exists in some EU countries and which, if adopted by the Belgian legislator, would allow the BCA to impose regulatory remedies following a general or sectoral inquiry.

III. From beer to banking – the BCA’s increased enforcement of restrictive practices

It is not only in the field of mergers and through general investigations that the BCA has become an active enforcer, it is also focusing on anticompetitive practices, and recent decisions show that no sector is safe:

• On 3 July 2024, the BCA fined the security firms Seris, G4S, and Securitas for engaging in illegal price-fixing, bid-rigging, and no-poach agreements (see our previous alert). The fines amounted to a staggering 47 million euros, which took into account the severity of the facts and the 12-year duration of the infringement. It was the first time the BCA fined companies for concluding a no-poach agreement, i.e., agreeing not to hire each other’s employees.
• In the same month, the BCA adopted a decision in its fire extinguishers Following an ex officio investigation opened in 2018 against Ansul/Somati and Sicli, two major players in the fire protection sector in Belgium, the BCA found that the companies had engaged in bid-rigging practices over a period of seven years. They had agreed not to compete with each other for public procurement contracts, thereby sharing contracts and customers. Sicli was fined 2.2 million euros, while Ansul/Somati was granted immunity.
• In January 2025, the BCA announced that it had accepted commitments offered by the trade association Belgapom in relation to its price index for potatoes. Belgapom’s Pricing Committee, which consists of competing purchasers, had collected pricing information on a weekly basis to build its price index. According to the BCA this frequent and systematic exchange of commercially sensitive information carried the risk of increasing transparency in the participants’ procurement strategy and of enabling them to coordinate on their purchase prices. Belgapom offered a number of commitments to address the BCA’s concerns regarding the aggregation and anonymization of the collected data.
• More recently, on 25 March 2025, the BCA adopted a decision accepting commitments made by the major Belgian banks BNP Paribas Fortis, KBC, ING and Belfius concerning their joint ATM network (Batopin). Batopin had been set up by the banks to replace their individual ATM networks with a single ‘optimized’ network. In its investigation, the BCA focused on the impact on ATM accessibility, service quality and competition in the cash distribution market. To address the BCA’s concerns, Batopin and the founding banks committed to extending the ATM network and maintaining the quality of service.
• As recently as 24 April 2025, the BCA fined Johnson & Johnson Consumer, Boehringer Ingelheim and Haleon 11.2 million euros for engaging in anticompetitive category management arrangements regarding OTC medicines sold in Belgian pharmacies. Such arrangements generally relate to the placement, promotion and selection of in-store products. While they are not as such anticompetitive, the BCA found that over a period of more than 15 years the three companies had agreed in their store planograms to exclude competitor products, place their own products more favorably and monitor the implementation of their planograms in pharmacies.

In addition to these concluded investigations, the BCA appears still to have a substantial number of investigations in the pipeline. Based on publicly available information, the BCA is currently looking into the following cases:

• In September 2024, the BCA carried out inspections in the bus and coach passenger transport sector. The BCA is investigating whether certain companies engaged in anticompetitive agreements such as regarding price fixing, market sharing, bid rigging and/or no-poaching of each other’s personnel.
• On 16 January 2025, the BCA announced that it had opened an investigation into AB InBev, the world's largest brewer. Following reports from various stakeholders in the beer supply chain about AB InBev’s practices regarding the commercial conditions for the supply of beer to wholesalers and horeca operators in the on-trade channel, the BCA concluded that there were serious indications of a possible infringement of competition law rules, both under Article 101 TFEU (anticompetitive agreements) and Article 102 TFEU (abuse of a dominant position).
• On 17 March 2025 the BCA sent a statement of objections to the Roche Group concerning the abuse of a dominant position by delaying the market entry of competing biosimilars (biological medicines that are very similar to the active substance of the original biological medicine) of two anticancer medicines. According to the BCA, between 2017 and 2020, Roche had implemented a strategy based on financial incentives granted to Belgian hospitals to discourage them from organizing competitive tenders between Roche and competing biosimilars. The BCA also claims that Roche provided incorrect information on the use of biosimilars in combination therapy. A statement of objection sets out the authority’s preliminary views and does not prejudge the outcome of the proceedings. Roche now has the opportunity to respond to the statement of objections.

IV. Implications

Assessing a transaction’s market impact, irrespective of whether it is notifiable.

There is clearly a new wind blowing through the corridors of the BCA. The very rapid application of the ECJ’s Towercast judgment to two transactions suggests that the BCA is no longer willing to accept that potentially harmful transactions go unchecked, simply because they escape the rather high Belgian merger control thresholds. This is in line with what can be observed elsewhere in Europe where competition authorities, including the European Commission, are trying to find ways to review below-threshold mergers that could lead to concentrated markets that are then difficult to break up.

However, this development leads to less legal certainty for businesses. The advantage of a merger control regime with turnover thresholds is its clarity – either the turnover thresholds are met, and the deal must be notified, or not; and if not, the parties can go ahead and close. The BCA’s approach overrides that system and allows it, in theory, to look at any transaction that it deems potentially harmful to competition. Invoking Article 101 and 102 TFEU to review transactions raises various issues. The proceedings relating to those articles were designed for more adversarial scenarios, while in general merger parties are incentivized to collaborate and receive clearance. There are also no clear timelines and – at least in theory – companies may face fines for signing a sales and purchase agreement that is deemed anticompetitive. The BCA is aware of these concerns and has started advocating for call-in powers which would allow it to request merger control notifications for transactions that fall below the current turnover thresholds.

Remedying the situation and maintaining legal certainty is primarily a task for the national legislator. Indeed, the new Belgian government has indicated that it will consider legislative reforms to provide the BCA with stronger enforcement tools. In addition, the government also plans to increase the BCA’s overall resources which may further increase its level of activity. However, it is currently not clear if the Belgian government would be prepared to provide the BCA with call-in powers or under which circumstances such powers may apply.

• In the meantime, businesses will have to carefully assess their transactions and their impact on the market to see whether there is a risk that the BCA might be interested in reviewing them, even if they do not meet Belgian merger notification thresholds.

Auditing competitor cooperation to avoid unpleasant surprises – and hefty fines!

The BCA’s new antitrust enforcement practice does not focus on any specific sector, nor does it exclusively target large international companies. Instead, the BCA’s approach appears to signal that no sector is safe and that it will not shy away from invoking relatively new forms of theories of harm, including as concerns no-poach agreements.

If the BCA follows through on its announcement to conduct sector or general inquiries on a regular basis, this will undoubtedly lead to more antitrust investigations over time. Sector inquiries tend to focus on areas of the economy that are both relevant to consumers and society, and where there are already indications that competitive dynamics may be distorted in some way. If these concerns are confirmed, the BCA can be expected to open investigations against companies involved in any anticompetitive practices. If the Belgian legislator were to introduce a New Competition Tool, this would allow the BCA to impose regulatory remedies if a sector inquiry reveals a structural lack of competition in certain markets, without the need to prove an infringement of the competition rules.

• For businesses, this means that a careful review of the company’s agreements and its cooperation with competitors should be carried out to identify potential areas of concern and prevent the company finding itself in the BCA’s crosshairs. This review should cover all instances of information sharing with competitors, regardless of the context – i.e., as part of trade association meetings, joint venture negotiations, or even while chatting over a cold beer at a conference (or while queuing at an ATM to be able to pay for the beer in cash).