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- Merger Control Regime
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1.1 Membership of Supranational Organization
1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?
Belgium is a member of the European Union.
1.1.2 Is the jurisdiction itself a supranational jurisdiction?
1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?
Transactions falling under the jurisdiction of the European Commission pursuant to the EU Merger Regulation are exempt from notification in Belgium. In such cases, the Belgian competition authority is as a general rule precluded from applying the Belgian merger control rules to the transaction.
This is known as the "one-stop-shop" principle.
2. Nature of merger control regime
2.1 Mandatory or voluntary
2.1.1 Is filing mandatory or voluntary?
Filing is mandatory.
2.2 Suspensory effect
2.2.1 Must completion of the transaction await clearance by the relevant authorities?
Yes, a notifiable transaction must await clearance before completion/implementation.
1. What type of transactions are caught by the merger control regime?
1.1.1 Type of transactions that are caught by the merger control rules?
The following transactions are caught by the merger control rules:
- Mergers: two previously independent undertakings merge;
- Acquisition: an undertaking or a person already controlling an undertaking acquires control over the whole, or part, of another undertaking; or
- Joint venture: two or more undertakings form a ‘full-function’ joint venture.
1.2 Joint ventures
1.2.1 What types of joint ventures are caught by the merger control rules?
The formation of joint ventures performing on a lasting basis all the functions of an autonomous economic entity, i.e. a so-called "full function" joint venture.
1.3 Definition of "control"
1.3.1 How are the concepts of "control" and "change of control" defined?
"Control" over an undertaking is defined as the capability of decisive influence being exercised on an undertaking by rights, contracts or any other means, either separately or in combination, having regard to the considerations of facts and law involved.
The assessment of whether there is capability of decisive influence being exercised over an undertaking has to be decided on the facts in each case. Control can be established on either a de jure or de facto basis. De jure control is normally acquired on a legal basis by the acquisition of a majority of the voting rights or through special rights, while de facto control may be acquired by any other means, such as for example based on the size of the shareholding, the historic voting pattern at previous shareholders’ meetings and the position of other shareholders.
1.4 Minority shareholdings
1.4.1 Are minority and other interests less than control caught by the merger control rules?
Acquisition of a minority or other interest that does not lead to an acquisition of control is not caught by the merger rules.
However, a minority interest giving the capability of exercising control over the undertaking concerned, for example, due to veto rights related to certain strategic commercial decisions of the undertaking, is caught by the merger control rules - regardless of whether control is actually being exercised.
2. Establishing jurisdiction for notification of mergers
2.3 General thresholds
Merger control filing is required when:
- the combined turnover of the undertakings concerned exceeded EUR 100,000,000 in Belgium in the last financial year; and
- each of at least two of the undertakings concerned had a turnover of at least EUR 40,000,000 in Belgium in the last financial year.
2.5 Foreign-to-foreign mergers
2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?
Foreign-to-foreign mergers are notifiable in Belgium if the jurisdictional thresholds are triggered.
3. Calculation and allocation of turnover, asset value, transaction value etc.
3.1 Relevant turnover
3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?
Turnover is the total turnover during the previous financial year in Belgium including exports from Belgium.
3.2 Relevant period for calculation of turnover
3.2.1 Which financial year(s) is relevant for the calculation of turnover?
The last financial year is relevant.
3.3 Relevant undertakings for the calculation of turnover
3.3.1 The undertakings whose turnover is taken into account?
The turnover of each undertaking including group companies is taken into account for the calculation of applicable turnover.
3.4 Geographical allocation of turnover
3.4.1 The principles for the geographical allocation of turnover?
The competition authority seeks to align its approach regarding the geographic allocation of turnover with the practice of the European Commission.
Hence, turnover should be allocated geographically based on where the customer was located at the time of the turnover generating transaction, i.e. typically where the goods were actually delivered or services actually provided.
3.7 Special rules
3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?
The Belgian rules on the calculation of turnover of credit institutions and other financial institutions are the same as the EU Merger Regulation and can be found in the European Commission’s Consolidated Jurisdictional Notice.
and last updated on 13-11-2020 by
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