The Belgian Competition Authority (BCA) is progressively reshaping the boundaries of its oversight, actively scrutinizing mergers and acquisitions that fall below the standard notification thresholds. While the BCA currently lacks a formal “call-in” power to retroactively examine sub-threshold deals, a series of landmark cases and a pivotal ruling from the Court of Justice of the European Union (CJEU) have provided a potent legal basis for intervention. By leveraging general antitrust rules—specifically Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) and their national equivalents—the BCA is sending a clear signal that no transaction is immune from review if it threatens competitive dynamics. This strategic expansion of merger control represents a significant shift for businesses operating in Belgium, demanding a more cautious and forward-looking approach to deal-making.
The Legal Foundation: How Articles 101 and 102 TFEU Enable Below-Threshold Scrutiny
For years, the conventional wisdom held that merger control was a binary system: transactions exceeding specific turnover thresholds were notifiable and subject to mandatory approval, while those below the line were effectively safe from regulatory challenge. The BCA’s recent actions demolish this assumption by demonstrating that the general prohibitions on anti-competitive agreements and abuses of dominance can be applied to corporate acquisitions. The key legal catalyst came from the CJEU’s judgment in the Towercast case (C-449/21), delivered on 16 March 2023. This ruling affirmed that national competition authorities can examine a below-threshold acquisition under Article 102 TFEU, which prohibits the abuse of a dominant position, even after the transaction has been completed.
The Towercast decision did not create new law but clarified the existing legal framework. It confirmed that merger control regulations and general antitrust rules are not mutually exclusive. When a transaction is not caught by the specific merger control regime, it does not enjoy immunity. Instead, it remains subject to the general competition rules. This principle has empowered the BCA to reopen or initiate investigations into deals that previously would have flown under the radar, fundamentally altering the risk calculus for acquirers, particularly those with significant market power.
Answering the Core Question: How Does the BCA Review a Below-Threshold Deal?
The BCA reviews a below-threshold merger under the antitrust rules by assessing whether the acquisition constitutes an abuse of a dominant position (Article 102 TFEU) or an anti-competitive agreement (Article 101 TFEU). The process involves a substantive assessment that mirrors traditional merger control analysis: the BCA examines market shares, competitive constraints, barriers to entry, and the potential for the transaction to eliminate a significant competitive force. If the BCA finds sufficient evidence of potential harm, it can impose far-reaching interim measures—such as requiring the businesses to be kept separate or the appointment of a monitoring trustee—while the full investigation proceeds.
The Proximus/EDPnet Precedent: An Ex Officio Intervention with Immediate Consequences
The BCA’s most illustrative and aggressive application of this expanded authority is the Proximus/EDPnet case from 2023. The acquisition of EDPnet’s assets by Proximus, Belgium’s incumbent telecom operator, fell below the notification thresholds. Despite this, the BCA opened ex officio (on its own initiative) proceedings under the prohibition of abuse of dominance. The Competition College, in a preliminary assessment, found that the transaction could likely eliminate an important competitive constraint in the telecommunications market.
What makes this case a watershed is the severity of the interim measures imposed. The BCA did not simply open an investigation and wait. It ordered Proximus to keep the acquired businesses entirely separate, to preserve EDPnet’s viability and commercial independence, and, critically, to appoint an independent monitoring trustee to oversee compliance. These measures effectively froze the transaction in place while the investigation unfolded, placing immense operational and financial pressure on the acquirer. The case was ultimately resolved only after Proximus agreed to divest EDPnet to a competitor, Citymesh. This outcome demonstrates that the BCA is prepared to use its full arsenal of tools—including interim measures and forced divestiture—to remedy perceived competitive harm in below-threshold deals.
Dossche Mills/Ceres: Applying Merger Control Principles to Article 101 TFEU
The BCA has also extended its reach to below-threshold transactions by invoking Article 101 TFEU, which prohibits anti-competitive agreements between undertakings. The Dossche Mills/Ceres case from 2025 provides a clear example. The BCA investigated the proposed acquisition of Ceres’ artisanal bakery activities by Dossche Mills. Although the transaction was abandoned before a final decision was adopted, the depth of the BCA’s preliminary assessment is instructive.
The authority cited “serious indications of anti-competitive effects” and conducted a substantive review that closely mirrored a standard merger control analysis. It evaluated market shares, analyzed the competitive constraints present in the market, and assessed barriers to entry. This approach confirms that the BCA is willing to apply the structural logic of merger control—normally reserved for notifiable transactions—to a deal examined under Article 101. For practitioners and businesses, this blurs the line between merger control and general antitrust law, creating a regime of de facto review for any acquisition that could reduce competition, regardless of size.
Why Did the BCA Use Article 101 Instead of Article 102 in Dossche Mills?
Article 101 TFEU was likely chosen in Dossche Mills/Ceres because the case may not have involved a clear, pre-existing dominant position required for an abuse of dominance finding under Article 102. Article 101 can capture agreements that, while not necessarily involving a dominant firm, have the object or effect of restricting competition. An acquisition can be considered such an agreement if it eliminates a competitor and reduces competitive pressure, making Article 101 a powerful tool for challenging transactions that could lead to a coordinated or unilateral lessening of competition, even without dominance.
The Live Nation/Pukkelpop Investigation: A Test for Vertical Integration and Market Power
The most recent and high-profile example of this trend is the BCA’s investigation into Live Nation’s acquisition of Pukkelpop, a major Belgian music festival, initiated in 2025. This case is particularly significant because it was opened on instructions from the Minister for Economic Affairs, highlighting the political and public interest in the matter. The transaction fell well below the notification thresholds, yet the BCA is again relying on Articles 101 and/or 102 TFEU and their national equivalents to assess competitive concerns.
The focus of the investigation is Live Nation’s vertically integrated position in the live entertainment sector. Live Nation is not just a concert promoter; it also owns ticketing platforms (Ticketmaster), artist management divisions, and venue operations. The acquisition of a major festival like Pukkelpop raises distinct concerns about the ability of a vertically integrated firm to foreclose rivals. The BCA will be examining whether Live Nation could leverage its combined assets to disadvantage competing promoters, ticketing services, or festival organizers. The case is pending, but it serves as a clear warning to dominant players in any sector that even small, below-threshold bolt-on acquisitions can attract intense regulatory scrutiny if they reinforce a broader ecosystem of market power.
What Are the Practical Implications for Companies and Their Advisors?
For any company operating in Belgium or considering an acquisition of a Belgian target, the BCA’s new doctrine requires a fundamental shift in deal planning and risk assessment. The old assumption that a low transaction value or low turnover provides a safe harbor is no longer valid. The key practical implications include:
- Expanded Due Diligence: Legal due diligence must now include a robust antitrust risk assessment even for sub-threshold deals. This assessment must go beyond simple market share calculations to include an analysis of the target’s competitive significance and the acquirer’s broader market position.
- Increased Scrutiny of Strategic Acquisitions: Deals involving competitors in concentrated markets are the highest risk. The acquisition of a disruptive, fast-growing, or price-aggressive competitor is likely to attract BCA attention under the theories of harm developed in Proximus/EDPnet and Dossche Mills/Ceres.
- Risk of Interim Measures: Companies must prepare for the possibility that the BCA will impose interim measures, such as hold-separate obligations or trusteeship, which can be operationally complex and costly. This risk is highest in deals where the BCA sees a pressing risk of irreversible competitive harm.
- Reputational and Transactional Delay: Even if an investigation does not result in a prohibition or forced divestiture, the process itself creates uncertainty, delay, and negative publicity. The Live Nation/Pukkelpop case, with its ministerial involvement, underscores the heightened public profile of such interventions.
- Strategic Pre-Notification: Companies may need to consider voluntarily engaging with the BCA before completing a sub-threshold deal. While there is no formal mechanism for a “call-in” currently, proactive dialogue can help assess the authority’s appetite for intervention and potentially shape the transaction to mitigate concerns.
Evolution of Enforcement: From Passive Thresholds to Active Antitrust Vigilance
The BCA’s enforcement strategy mirrors a broader global trend among competition authorities. Regulators in the European Union, the United Kingdom, and the United States have all expressed concern that traditional turnover-based thresholds allow anticompetitive “killer acquisitions”—deals where large firms acquire small, innovative competitors before they can become a threat—to escape review. The Towercast judgment provides the legal architecture for this vigilance in Belgium and across the EU, while the BCA’s actions in telecoms, bakery, and live entertainment demonstrate a willingness to use that architecture aggressively.
The BCA has also signaled that it may seek formal “call-in” powers from the Belgian legislature, which would provide a statutory basis for reviewing below-threshold transactions, eliminating any reliance on the less direct path of Articles 101 and 102. Such a reform would align Belgian law with jurisdictions like the UK, where the Competition and Markets Authority has a broad power to “call in” deals that raise concerns. The introduction of a call-in power would further increase uncertainty for businesses, as it would formally empower the BCA to retroactively review completed deals for up to several years after closing.
The strategic calculus has changed. The BCA is no longer a passive enforcer of notification thresholds. It has repositioned itself as a proactive guardian of competitive market structures, willing to use the full reach of general competition law to challenge transactions that, in its view, threaten consumer welfare. For companies, the era of the below-threshold safe harbor in Belgium has effectively ended. The prudent course is to conduct antitrust risk assessments for every transaction that involves a competitor or reinforces market power, regardless of its nominal size. The BCA’s message, delivered through the Proximus, Dossche Mills, and Live Nation cases, is unmistakable: no deal is too small to escape its gaze.
