Insights

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.

Just over a year ago, the notification obligations under the EU Foreign Subsidies Regulation (FSR) became applicable. Since then, M&A transactions and bids for government contracts above certain thresholds must be notified to the European Commission. Pending the Commission’s review, the transaction cannot be completed, or the contract cannot be awarded. What lessons can be learned from the application of the FSR to date? Has the FSR proved to be an effective tool in leveling the playing field, or has its main effect been to burden companies with red tape, at the risk of discouraging investment in Europe?

On September 3, 2024, the EU Court of Justice overturned the first-instance judgment of the EU General Court, which had held that the European Commission could review transactions that fall below EU and Member States' merger control thresholds through referrals by national competition authorities under Article 22 of the EU Merger Regulation (Case C-611/22 P, Illumina v Commission).

On August 1, 2024, the European Commission published its draft Guidelines on abusive exclusionary conduct by dominant undertakings. Their adoption would mark the first major update in over 15 years of the Commission’s guidance on the application of the prohibition of abuse of dominance laid down in Article 102 of the Treaty on the Functioning of the European Union (TFEU). The Commission’s 2008 Guidance on enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, which received only a limited update in 2023, were once hailed as a welcome move away from a legalistic, form-based approach to an effects-based approached informed by economics. Is the pendulum now swinging back to a more formalistic approach based on presumptions, shifting the burden of proof onto dominant undertakings and heralding an era of stricter enforcement?

Making claims about carbon reductions or “carbon neutrality” may seem an attractive way to distinguish a company for its sustainability work, but such claims are becoming riskier to make. The last several years have seen a significant increase in litigation and regulatory requirements regarding such claims in the European Union, United Kingdom, United States and beyond.  Continuing that trend, on 27 June 2024, the German Federal Court of Justice handed down a Judgment in a case concerning environmental claims.  It is likely to have significant ramifications – particularly for companies making climate-related or carbon/greenhouse gas/emission – related claims in Germany.  This German case is just one example of why any company considering such claims should carefully examine the regulatory, enforcement and litigation landscape in all relevant jurisdictions, while also being sure to carefully construct and substantiate the claims.  

The European Commission recently revised its Guidelines on Horizontal Cooperation Agreements. This alert is the fourth and last in a series of alerts in which we provide practical guidance, in light of these revised Guidelines, on how to make antitrust-related assessments for various types of agreements between competitors.

At the beginning of the year, we brought to your attention that a number of important Belgian and EU legislative changes are likely to have an impact in 2024: there are new laws that have been adopted and proposals that are expected to firm up into law.

More than 25 years after the adoption of the original Market Definition Notice in 1997, the European Commission published a revised Market Definition Notice earlier this year. The definition of relevant markets is often the first step in a competition analysis and forms the basis for calculating undertakings’ market shares and thus their level of market power.

A number of important Belgian and EU legislative changes are likely to have an impact in 2024. On the one hand, there are new laws that have been adopted and will start to bite, and, on the other, there are proposals that are expected to firm up into law.

On July 1, 2023, the European Commission’s revised Guidelines on Horizontal Cooperation Agreements entered into force (see our previous alert for a comprehensive overview of the new rules, including the new horizontal block exemption regulations).

On July 1, 2023, the European Commission’s revised Guidelines on Horizontal Cooperation Agreements entered into force (see our previous alert for a comprehensive overview of the new rules, including the new horizontal block exemption regulations).

As from October 2023, companies receiving financial contributions from third countries will have to report these to the European Commission when engaging in M&A transactions or bidding for public contracts above certain thresholds. This alert guides you through the new notification obligations under the EU Foreign Subsidies Regulation (FSR): first, we situate these obligations within the overall set-up of the FSR; then we go into the detail of the notification obligations themselves; before concluding with practical advice on how to meet these new obligations.

On June 1, 2023, the European Commission published its new block exemption regulations on research and development agreements (R&D BER) and specialization agreements (Specialization BER), together referred to as the Horizontal Block Exemption Regulations (HBERs). At the same time, it published its final Guidelines for Horizontal Cooperation Agreements (Horizontal Guidelines). The new HBERs will enter into force on July 1, 2023.

On April 20, 2023, the European Commission adopted a number of measures to simplify and streamline its merger review procedure. The changes are intended to speed up the review of transactions that are unlikely to raise competition concerns, thereby allowing the Commission to focus its resources on the most relevant cases. The new rules will enter into force on September 1, 2023.