2023 began with the end of Jacques Steenbergen’s mandate as president of the Belgian Competition Authority (BCA) on 31 January 2023, after 15 years as the head of the BCA. Unfortunately, at the end of 2023 the new BCA president has still to be appointed as no agreement has been reached between the government’s coalition parties concerning his successor. However, the authority has been able to significantly increase its manpower and its formal and informal enforcement tools following the implementation of the ECN+ Directive in 2022 and the important increase in its budget. The Prosecutor’s office has been restructured and reinvigorated under the leadership of the new Prosecutor General, Damien Gerard, and has used all its enforcement tools, including for the first time its power to request ex officio interim measures. In particular, there have been notable actions taken in the telecommunications, pharmaceutical, agrifood and banking sectors. The BCA has also continued its “crusade” against infringing vertical agreements and practices.
Telecommunications sector
The telecommunications sector is undoubtedly one of the sectors in which the BCA has been particularly active during 2023.
Firstly, it assessed the compliance of a mobile infrastructure sharing agreement (ie, a “RAN-sharing agreement”) between Proximus and Orange under competition law after a competitor, Telenet, had brought a complaint against the joint venture (JV). The BCA concluded that this cooperation did not reveal any (potential) restriction of competition.
Second, the BCA looked at agreements related to the rollout of fiber-to-the-home. In 2022, Telenet Group Holding NV and Fluvius System Operator announced a JV to construct a data network for fiber rollout in Flanders and Brussels. They planned to establish a new infrastructure company (NetCo) to combine their fixed electronic communications networks. The BCA opened an investigation in June 2022 due to concerns about potential competition distortion. However, on 18 April 2023, the BCA closed its investigation after the parties committed to binding measures addressing the identified concerns. In May 2023, the European Commission also cleared the transaction under the EU Merger Regulation.
Despite this, the BCA will continue monitoring the implementation of measures and closely follow the fiber network rollout process, in particular examining agreements between telecom operators to ensure cost savings benefit end-users. In doing so, the BCA stated that it will collaborate with the Belgian Institute for Post and Telecommunications (BIPT) and will pay attention to the conditions outlined in the BIPT Communication issued on 10 October 2023 in this regard.
