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Belgian Competition Authority Seeks Interim Measures Against Acquisition Not Caught by Merger Control Rules

  • 21/04/2023
  • News

Last month, the Belgian Competition Authority (BCA) decided to open abuse of dominance proceedings against telecommunications operator Proximus on account of that party’s acquisition of struggling Edpnet (see, Life Sciences News and Insights, 23 March 2023). On 20 April 2023, the BCA’s chief prosecutor turned up the pressure several notches when seeking interim measures that should, in the BCA’s words, “ensure the continuity of the activities of Edpnet, while maintaining its operational and commercial independence from Proximus” (see, attached press release). In pursuing these “hold separate” measures, the BCA will walk a tightrope in keeping Edpnet away from the embrace of Proximus, while still wishing to secure the financial lifeline which Proximus extended to lift Edpnet out of judicial reorganisation proceedings. The interim measures should apply for the duration of the BCA’s review of the transaction.

This marks the first time that the chief prosecutor is making use of his statutory right to request and obtain interim measures that suspend competition violations “when it is necessary urgently to avoid a situation that (…) is liable to harm the general economic interest” (Article IV.71, Code of Economic Law). The move is arguably bold and illustrates the legal uncertainty which the Court of Justice of the European Union created last month when holding that an acquisition that does not reach the financial thresholds for review under European Union or national merger control rules may, post-transaction, still be made subject to an abuse of dominance review by a national competition authority pursuant to Article 102 of the Treaty on the Functioning of the European Union. It is likely to be repeated in other European jurisdictions and reminds technology companies, including life sciences firms, of the necessity to seek the informal approval of competition authorities for small-scale acquisitions that would not normally qualify for antitrust review.

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