New President Belgian Competition Authority Speaks Out on Priorities and Areas of Concern

• 25/10/2024
• News

Axel Desmedt became the new President of the Belgian Competition Authority (BCA) on 1 March 2024 (see, Belgian Antitrust Watch of 1 March 2024). Following a period of deliberate silence in order to allow himself time to settle in and attend to urgent matters, Mr. Desmedt recently gave public indications regarding the direction of travel of the BCA under his stewardship (Belgian Association for Studying Competition Law, Universitaire Stichting/Fondation universitaire, on 11 October 2024 and Informa’s Digital Challenges in Competition Law on 17 October 2024). While not all of the points which Mr. Desmedt mentioned are new, some reflect fresh ideas or imply an intensified focus on specific matters by the BCA. 

• Call-in Merger Control Powers – Emulating the example of his counterparts in other national competition authorities, including the Dutch Autoriteit Consument & Markt, Mr. Desmedt advocates for a change in the law that would confer the power on the BCA to “call in” and review mergers that would not normally qualify for competition scrutiny because they do not satisfy the financial thresholds for doing so. His position was prompted by the judgment which the Court of Justice of the European Union (CJEU) delivered on 3 September 2024 in Illumina Grail. The CJEU held in that case that Article 22 of the Merger Control Regulation does not offer the statutory basis for mergers over which Member States have no jurisdiction to be referred for review to the European Commission (the Commission). The call-in powers, which already exist in several Member States, would remedy what Mr. Desmedt and others consider an “enforcement gap” and enable the BCA to examine such mergers itself or ask the Commission to carry out such a review. 
• New Competition Tool – Mr. Desmedt is also a proponent of a New Competition Tool (NCT) that would enable the BCA to tackle market distortions even if no infringement of the competition rules by specific parties was established.  Such an instrument is already on the statute books in Germany and has been called for by, once more, the President of the “Autoriteit Consument & Markt” in The Netherlands. Mr. Desmedt pointed out that Articles V.3 and V.4, Code of Economic Law, created a precursor to the NCT on a smaller scale in that these provisions only apply to pricing issues and solely allow for the adoption of temporary measures.   
• Coordination with European Commission and Member State Competition Authorities – For Mr. Desmedt coordinating enforcement activities with other relevant competition authorities will often be key to reaching a successful outcome in a given case. 
• Support for European Commission Policies – An important part of the new tasks of the BCA is to assist the Commission in applying the Digital Markets Act (see, Belgian Antitrust Watch of 29 March 2024; and Belgian Antitrust Watch of 25 June 2024) and the Foreign Subsidies Regulation. The BCA’s brochure explaining the DMA will be published shortly.
• Telecommunications – Mr. Desmedt, a former member of the executive board of the Belgian Institute for Post and Telecommunications, will continue to keep a watchful eye on the telecommunications sector which is not only an important industry in its own right but also creates the foundations for economic activity overall. Important matters include new market entry and the proposed network infrastructure cooperation for the roll-out of new fibre networks (see, Belgian Antitrust Watch of 30 July 2024). 
• Cooperation with Other Regulators – Smooth cooperation with other regulators responsible for postal services and telecommunications, energy, financial services, and data protection is crucial and will require cooperation agreements and the adaptation of the regulatory framework. 
• Sector Inquiries – Mr. Desmedt confirms that the BCA is gearing up for its first sector inquiry but refuses to identify its target.   
• Internal Organisation – The BCA has undergone a transformation, both in terms of numbers and in organisational outlook (which translates into an expanded team of economists; the creation of specialist teams dealing with pharmaceuticals, food, and digital markets; and digitalised case management, archiving, and knowledge management). Further work is needed on the legal service; the human resources function; communications; and information technology.      

Evergreens – The BCA will continue to spend time and efforts on the enforcement of competition policy in traditional areas such as resale price maintenance.