18 - Antitrust Enforcement in Belgium

Summary

Belgian antitrust enforcement has gradually been strengthened. Applicable provisions are mostly copied from EU law, but national accents remain. Sanctions on natural persons were introduced, and abuse of relative dominance (abuse of economic dependency) was recently prohibited. Some provisions, such as the extension of the scope of EU exemptions to purely national cases, were innovative. Also creative is also the National Competition Authority (NCA)’s hybrid institutional structure, largely separating investigation and fining within one institution. No criminal antitrust sanctions currently exist. Room for improvement remains. The NCA clearly faces budgetary and human resource constraints. The power balance appears to be gradually moving towards the Auditorat. The settlement rate is very high and fines are generally low, weakening the deterrent effect of enforcement. As to private enforcement, there is a long tradition of injunctive relief, although applicants may face a high burden of proof, especially in dominance cases. Belgium duly implemented the EU Damages Directive, introducing the envisaged advantages for claimants but also the hurdles, such as the ‘passing-on defence’.