The Dominance and Monopolies Review: Belgium
Abuses of dominance are prohibited under Belgian law pursuant to Article IV.2 of the Code of Economic Law (CEL). Article IV.2 of the CEL is the domestic equivalent of Article 102 of the Treaty on the Functioning of the European Union (TFEU), and its wording is almost identical to the EU provision. As expressly acknowledged by the Belgian legislature, Article IV.2 of the CEL is intended to be a 'carbon copy' of Article 102 of the TFEU to align the interpretation of the Belgian and EU rules on dominance.2 In effect, such a legal transplant allows companies to rely on EU precedents before the Belgian Competition Authority (BCA) and the Belgian courts,3 that is, on the European Commission's decisional practice and the case law of the EU General Court and the European Court of Justice.
In the same spirit, Article I.6 of the CEL defines the notion of dominant position in the same way as the European Court of Justice did in Hoffmann-La Roche, namely as a position enabling an undertaking to 'prevent effective competition being maintained on the relevant market by affording it the power to behave to an appreciable extent independently of its competitors, its customers and ultimately of the consumers'.4 Again, that transplant was expressly intended by the Belgian legislature to ensure consistency with EU precedents in the application of dominance rules and, therefore, to bring as much legal certainty as possible in an area of competition law that is notoriously unstable.5 References to EU case law are therefore very common before the BCA and the Belgian courts, which rely heavily on EU precedents in their decisions and judgments irrespective of whether Article IV.2 of the CEL and Article 102 of the TFEU are applied jointly or not. In the absence of Belgium-specific guidelines or policy statements on the application of Article IV.2 of the CEL, the Commission Guidance Paper can also be used as a source of authority in the Belgian context,6 at least as much as it can be relied upon in the EU context. In theory, the Belgian and EU rules on dominance are therefore perfectly aligned.7
In 2019, Belgium deviated from this approach and made use for the first time of the flexibility afforded by Article 3(2) of Regulation 1/2003, that is, of 'adopting and applying on [its] territory stricter national laws which prohibit or sanction unilateral conduct engaged in by undertakings'.8 The new legislation adopted by the Belgian federal parliament entered into force on 22 August 2020 and introduced, among other changes, the concept of 'abuse of economic dependency' in Book IV of the CEL, thereby allowing enforcement against non-dominant undertakings that abuse their position of market power created by the economic dependency of another undertaking.9 Article IV.2/1 of the CEL prohibits conduct that reach the level of an abuse of economic dependency. The provision works in the same way as Article 102 of the TFEU; it provides an indicative list of potentially abusive conduct, which is identical to its EU counterpart, except for the addition of 'refusing a sale, a purchase or other transaction terms'. The BCA is competent to investigate abuses of economic dependency under the same procedural rules as those applicable to abuses of dominance. The only difference with this regime concerns fines, which are capped at 2 per cent of yearly turnover, and penalty payments, which are limited to 2 per cent of daily turnover.10 As in dominance cases, a finding of abuse may give rise to follow-on damages claims, requests for cease-and-desist orders or actions for annulment of contracts.
The new provisions cover unilateral practices that are compliant with Article IV.2 of the CEL. This regime therefore does away with the previously applicable theory of the 'reflex effect' of competition law on the law of unfair trade practices,11 which did not allow a commercial practice, implemented by a dominant company that is considered permissible under Article IV.2 of the CEL (and Article 102 of the TFEU), to constitute an unfair trade practice insofar as the essence of the plaintiff's claim related to an impediment to the functioning of the free market resulting from that practice (apart from a case of abuse of right). The Belgian regime for abuses of economic dependency is inspired by existing regulations in France, and follows the footsteps of several other Member States.12 To date, there have been limited applications of these provisions by competition authorities across the EU; most cases have concerned private enforcement before national courts. As for Belgium, while public enforcement is constrained by the limited resources of the BCA, the broad definition of the concept of economic dependency in the CEL suggests an increase in private litigation in the future.13
To date, the BCA has not yet issued any decision on the basis of the new Article IV.2/1 of the CEL. However, on 4 March 2021, the federal minister for small and medium enterprises requested the BCA to investigate practices in the potato sector that may constitute an abuse of economic dependence.14
Shortly following the adoption of the rules on abuse of economic dependency, the Belgian legislator passed a new law introducing important substantive and procedural changes to Book IV of the CEL.15 The main change concerns the basis for the calculation of the 10 per cent cap on the fines imposed for infringements of competition law (with the exception of abuses of economic dependency), which shifts from the national to the worldwide consolidated turnover,16 in line with the requirements of the ECN+ Directive 2019/1.17
Belgian law does not contain specific provisions on unilateral practices applying to specific sectors of the economy, such as the energy or telecommunications sectors,18 and, as is the case at the EU level, competition rules apply to state-owned enterprises and undertakings benefiting from special rights 'insofar as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them'.19
Finally, Belgian law has long been characterised by the same tensions that affected the enforcement of dominance rules at EU level, notably between a more formal and a more effects-based approach to the assessment of abusive practices. In practice, some differences could be observed as Belgian courts sometimes relied on somewhat formalistic reasoning and tended to interpret Article IV.2 of the CEL in the light of perceived 'fairness' requirements (i.e., without assessing the existence of (likely) anticompetitive effects or the actual incentives of dominant undertakings to engage in foreclosure strategies).20
Year in review
Over the past decade, the BCA has adopted approximately one-third of its decisions on the basis of Article IV.2 of the CEL and Article 102 of the TFEU. This high average conceals a drop over the past couple of years, which suggests convergence between the BCA and competition authorities in neighbouring jurisdictions and at the EU level (independent of commitment decisions). The decrease of abuse of dominance cases was also visible in 2020, although the high number of mergers approved through the simplified procedure dilute their share of the total number of BCA decisions.
In 2020, the BCA adopted two decisions regarding interim measures, one positive and one negative, as well as a follow-up decision urging compliance with interim measures previously imposed. In the first quarter of 2021, the BCA did not adopt any decisions in relation to abuses of dominance.
On 23 January 2020, the BCA imposed interim measures on the Belgian Golf Billiards League (BGB). Hector Cue Sports Belgium (HCSB), a Belgian bumper-pool balls manufacturer, submitted a complaint before the BCA claiming that the BGB restricted competition in the market for the supply of billiard balls. In fact, the BGB 2019–2020 rules designated a single specific brand of balls, excluding the use of other brands in competitions and games organised by the association or its clubs. The BCA held that the exclusion of certain balls without objective justification is to be qualified prima facie as an abuse of dominance. The interim measures allowed the BGB to choose, for the 2020–2021 season, until the BCA decides on the merits of the case, between two options: (1) the suspension of the contractual or regulatory obligations accepting only one type of bumper pool balls – allowing the BGB to restrict use of certain balls on objectively identified characteristics; or (2) the organisation of a tender to select billiard balls based on objectively identified characteristics. The BGB opted for organising a tender. On 28 August 2020, the BCA imposed a penalty payment on the BGB for non-compliance with the interim measures decided seven months earlier.21 The BCA found that the conditions and technical requirements in the BGB's tender were not objective, proportionate or consistent and that imposing such requirements should be limited to competitions organised by the BGB and its members.
Similarly, on 14 May 2019, the Belgian Arbitration Court for Sports (CBAS) found that the Belgian Billiards Association breached Article 102 of the TFEU by approving only one specific brand of billiard cloth, without any objective justification, for the competitions organised. The CBAS is an arbitration tribunal with jurisdiction over sport matters when opted for in the statutes or rules of sport federations. The CBAS recalled the EU Meca-Medina precedent, which held that EU law prevails over the regulations of sport federations.22
On 16 March 2020, the College rejected a request for interim measures on computer hardware maker HP Belgium and HP Industrial Printing Solutions Europe (together, 'HP').23 HP decided to discontinue the availability of printheads and ink cartridges for certain printers. DPI, a Belgian printing company, filed a complaint against HP, claiming abuse of dominance by interrupting the availability of these products such measures. The BCA, however, held that DPI provided insufficient evidence to conclude for a likely prima facie abuse of dominance. DPI did not provide sufficient support to define the relevant product and geographic market, which meant that the BCA did not assess whether HP's conduct was an abuse of dominance. The BCA, nevertheless, reiterated that in the absence of essential facilities, the termination of production cannot constitute an abuse of dominance. Interestingly, the BCA followed HP's argumentation that, in any event, the Stockholm Convention on persistent organic pollutants forbids the availability or use of the ink after December 2020.
In 2020, the Belgian courts were more active than the BCA. The Brussels Court of Appeal issued one interlocutory judgment requesting a preliminary ruling from the European Court of Justice. The Ghent Enterprise Court issued a judgment marking the first application of the new Article IV.2/1 of the CEL prohibiting abuses of economic dependency. The Brussels Court of Appeal also issued an interlocutory judgment partially annulling a BCA decision. Finally, in a pending case before the Antwerp Enterprise Court, the European Court of Justice issued a preliminary ruling requested in 2019.
On 19 February 2020, the Brussels Court of Appeal issued an interlocutory judgment in bpost, requesting a preliminary ruling from the European Court of Justice on the interpretation of the ne bis in idem principle under EU law. This court judgment is the latest development in a protracted legal dispute between bpost, the incumbent postal services provider and the sectoral regulator, the Belgian Institute for Postal services and Telecommunications (BIPT). At the core of the debate is the interplay between competition law and sector-specific regulation.
In 2011, the BIPT fined bpost for carrying out a discriminatory rebate scheme.24 In a separate decision in 2012, the BCA (then the Competition Council) found the scheme to be abusive because of its loyalty-inducing effect and fined bpost (after deducting the BIPT fine from the initial fine amount). On 10 March 2016, the Brussels Court of Appeal annulled the BIPT's decision, finding that the rebate system was not discriminatory, in line with a preliminary ruling issued by the European Court of Justice the year before.25 Although bpost was acquitted from the BIPT fine, the Brussels Court of Appeal annulled the BCA decision on 10 November 2016 for breach of the ne bis in idem principle.26 The Court considered that the facts underlying the BCA's decision had already been subject to scrutiny by the BIPT in a final decision and the sanctions that both authorities could impose were of a criminal nature under the European Convention of Human Rights. The conditions for the ne bis in idem principle to apply were, therefore, met even though the two authorities operate under different legal regimes (competition law and postal regulation, respectively).27 On 22 November 2018, the Belgian Supreme Court overturned the Brussels Court of Appeal judgment for having annulled the BCA decision based on insufficient legal grounds.28 The Court examined the recent case law of the European Court of Justice29 and concluded that the ne bis in idem principle is no obstacle to parallel proceedings if these have complementary objectives with regard to different aspects of the same conduct. The Belgian Supreme Court therefore overturned the judgment and referred the case back to the Brussels Court of Appeal.
In its interlocutory judgment of 19 February 2020, the Brussels Court of Appeal considered that the Toshiba judgment (a 2012 case that had not been discussed until then in the proceedings) could shed light on the appropriate way to apply the ne bis in idem principle.30 In this case, the European Court of Justice confirmed that an identity of the 'legal interest protected' under parallel competition law proceedings at the EU and national levels was required for the principle to apply (in addition to the identity of facts and parties). The Brussels Court of Appeal then asked the European Court of Justice whether this third condition also applies in the context of the concurrent application of two different legal regimes (here, competition law and postal regulation) and, if not, whether a restriction of the ne bis in idem principle could be justified by their complementary objectives. The Brussels Court of Appeal considered that, should the identity of legal interest protected not be required, the effet utile of competition law, which by essence applies horizontally across all sectors, could be undermined. The European Court of Justice's preliminary ruling on these questions is now awaited (and will be the second rendered by the EU's top court in this case).
Interestingly, the European Commission intervened in the challenge before the Belgian Supreme Court and is intervening in the procedure pending before the Brussels Court of Appeal. The European Commission frequently uses its amicus curiae prerogatives under Article 15 of Regulation 1/2003 to submit written observations to national courts, with a view to ensuring a consistent application of EU competition law. Here, the Brussels Court of Appeal followed the Commission's recommendation to consult the European Court of Justice and followed the enforcer's qualification (also endorsed by the BCA) as to how to formulate the questions to be asked to the court.
On 7 October 2020, the Brussels Court of Appeal issued an interlocutory judgment partially annulling the BCA's Base v. Belgacom Mobile (BMB) decision of 26 May 2009.31 In a previous interlocutory judgment of 9 October 2019 in the same case, the Court of Appeal declared an on-site inspection conducted by the Auditorate without a warrant illegal.32 Interestingly, the legal framework applicable at the time did not require such warrant. Yet the Brussels Court of Appeal considered the absence of any judicial control on-site on the Auditorate's inspection powers in violation of the Belgian Constitution and international law. On 7 October 2020, the Court annulled the BCA's decision to the extent that it was based on evidence obtained during the illegal on-site inspection. The case is still ongoing; it remains to be seen whether the amount of the fine will be reduced.
On 28 October 2020, the President of the Ghent Enterprise Court applied the recently adopted legislation prohibiting abuses of economic dependency, for the first time.33 The President imposed a cease-and-desist order on Woody, a supplier of children's clothing, for refusal to deal with a local retail store. The retail store mainly offers children's clothes from the Woody brand, making it largely dependent on Woody's deliveries for the coming season. The President of the Court found Woody in breach of the new Article IV.2/1 of the CEL prohibiting abuse of economic dependency for terminating its supply agreement with the local retail store arbitrarily and without prior notice. By continuing the transfer of promotional materials, Woody had given the impression that the clothes would be delivered. The sudden termination of their long-standing collaboration just a few days ahead of the scheduled delivery resulted in bad faith according to the President of the Court. The fact that the local retailer dealt with solvency problems was just pretext according to the Court, which stated that Woody's refusal to deal formed part of a broader strategic reorganisation of its distribution network.
On 25 November 2020, the European Court of Justice responded to a preliminary ruling request submitted by the Antwerp Enterprise Court on 28 February 2019.34 The case opposed SABAM, the Belgian collecting society, and two festival organisers, and concerned the remuneration that the festival organisers should pay SABAM for the use of its repertoire. The Antwerp Enterprise Court asked the European Court of Justice whether an abuse exists under Article 102 of the TFEU, whether or not read in conjunction with Article 16 of Directive 2014/26/EU on collective rights management, when a collecting society (with a factual monopoly in a Member State) applies a remuneration model with a fixed rate, instead of a rate taking account of the actual share of the protected music repertoire played during the event; and whether the licence fees depend on external elements.
The European Court of Justice ruled that SABAM's remuneration model does not constitute an abuse of dominance, provided that the actual fees imposed are not disproportionate to the nature and scope of the use, the economic value generated by that use and the economic value of the service provided to society. Moreover, the Court held that no other methods should allow more accurate identification and quantification of the use to achieve the same legitimate aim. The Antwerp Enterprise Court will now have to implement this ruling.
BCA: significant decisions and pending cases
|BCA significant decisions|
|Sector||Conduct||Decision||Auditorate or College||Case opened|
|Print supplies||Refusal to deal/sell printheads and ink cartridges||Interim measures rejected||College||February 2020|
|Golf billiards||Exclusive dealing with a billiard ball manufacturer||Interim measures||College||November 2019|
|Compliance with interim measures|
|BCA active cases|
|Print supplies||Refusal to deal/sell printheads and ink cartridges||February 2020|
|Golf billiards||Exclusive dealing with a ball manufacturer||November 2019|
|Pharmaceuticals||Delay or restriction of market entry of generics||October 2019|
|Radio broadcasting service||Refusal to access/use broadcasting antennas||November 2018|
|Electricity meters||Price discrimination||May 2018|
|Show-jumping competitions||Different treatment of teams under federation regulations||November 2017|
|Postal services||Loyalty rebates||November 2005 (currently before Brussels Court of Appeal in second review of the case, pending preliminary ruling from the European Court of Justice)|
Market definition and market power
When it comes to market definition and the assessment of dominance, the BCA and the Belgian courts can be generally expected to use the same criteria as the European Commission, the General Court and the European Court of Justice. As noted above, the definition of 'dominance' provided by Article I.6 of the CEL is directly derived from the well-known formula expressed by the European Court of Justice in Hoffmann-La Roche, because, under EU law, it is essential under Belgian law to first define the relevant markets before assessing whether an undertaking holds a dominant position.
The main criterion used to define the relevant product and geographic markets is that of 'substitutability', which is first of all assessed on the demand side. Products and services are considered part of the same market if they are regarded as substitutable for users or consumers by reason of their characteristics, prices, and intended use. The assessment of substitutability should also reflect any sources of potential competition (new products, potential entry of a new competitor on the geographical market, etc.), and any relevant constraint that may affect the demand structure, such as the existence of a specific regulatory framework. In addition, the substitutability does not need to be perfect if it is effective for a part of the goods or services at issue that is significant enough to materially affect factors driving competition, in particular prices.
Decisions by the BCA and judgments by the Belgian courts typically describe, first of all, the contentious commercial practice, to ascertain the competitive environment affecting the supply and demand of the affected products or services. Then market definitions previously adopted at the European or Belgian level (but also by the competition authorities of neighbouring countries) are generally considered a useful, if not decisive, starting point.35 Potentially converging arguments of the parties involved are further likely to influence the market definition.36 It is also common to consider several possible definitions and to test whether the defendant can be deemed to hold a dominant position under any of them. If this is not the case, or is not such as to affect the outcome of the competitive analysis, it is also common practice to leave open the question of the exact definition of the relevant markets. Generally, even though somewhat dated, the Commission's guidance on the definition of relevant markets is frequently relied upon before both the BCA and the Belgian courts, so that arguments relying on such guidance will often carry particular weight.37
In line with practices at the EU level, the assessment of dominance requires consideration of various factors that, taken separately, are not necessarily determinative.38 Among these factors, considerable importance is given to market shares. Although the CEL does not provide for a market-share threshold above which an undertaking would be deemed dominant, the BCA has considered in the past that a market share exceeding 50 per cent entailed a presumption of dominance.39 Likewise, a market share exceeding 40 per cent, while not decisive in itself, has been viewed as a very important indication of the existence of a dominant position.40 Conversely, the BCA has also proved that it is open to more sophisticated approaches whereby 'a considerable market share is not automatically considered as equivalent to a dominant position'.41 Overall, Belgian practice recognises the need to assess the position of an allegedly dominant company in comparison with the position of its competitors and to consider in particular,42 as a proxy for the ability to circumvent competitive constraints and as evidence of a possibility to behave independently of competition: the differences in market shares;43 the evolution in time of market shares; the concentration index of the relevant markets; the existence of barriers to entry; the significance of potential competition; the existence of network effects; the vertically integrated structure of competing firms; competing firms' respective economic and financial power; and the nature of the contentious practices. The BCA has also relied on earlier findings of dominance in its own decisions.44
Finally, there are only a small number of precedents in which the BCA has had recourse to the concept of collective dominance. The main example to date is the 2014 decision dismissing a complaint brought against various film studios.45 The complaint against the studios involved digital screening fees paid by major record companies (the majors) to certain theatre owners and 'incubators', but not to the complainant. The Auditorate summarily referred to the Sony v. BMG criteria,46 which it found inapplicable to the case at hand and therefore rejected the allegation of collective dominance on the part of the majors. Moreover, the Auditorate noted that the European Commission had already investigated the substance of the companies' contracts involving digital screening fees, and had closed its investigation after the contracts in question were amended.
Although the assessment of the abusive character of a specific commercial practice is inherently fact-specific, the BCA and the Belgian courts can generally use criteria or tests similar to those developed to that effect by the European Commission and the European Court of Justice. Article IV.2 of the CEL was modelled after Article 102 of the TFEU, and, accordingly, contains a non-exhaustive list of practices that may be considered abusive depending on the circumstances. Moreover, as at the EU level, the BCA, and courts take as a starting point that holding a dominant position is not problematic per se,47 and that 'the existence of a dominant position does not deprive an undertaking in this position from the right to protect its own interests when they are jeopardised',48 but that it may not abuse its position to exploit consumers or foreclose competition. With respect to exclusionary conduct, the 'as-efficient competitor test' is also used as a baseline.49 Belgian courts are more unpredictable than the BCA with respect to the application of these principles.
Generally, the abusive character of a commercial practice implemented by a dominant company depends on its actual or likely effects on competition. To assess the materiality or likelihood of such effects, the BCA and courts typically rely on specific tests designed for certain categories of practices, which are then applied to the facts of each case. These tests tend to create presumptions that are rebuttable in view of the circumstances prevailing on the relevant markets and the actual effects observed (or lack thereof). Similarly, a practice is only regarded as abusive after consideration has been given to possible objective justifications, if any, put forward by the dominant company. Unfortunately, Belgian courts sometimes tend to adopt a formalistic approach to the notion of abuse, occasionally driven by underlying 'fairness' considerations.50
ii Exclusionary abuses
With regard to predatory pricing, the leading precedent in Belgium is Electrabel.51 The case involved allegations of predatory pricing on the part of the incumbent gas operator, Electrabel, at the time of the liberalisation of the sector. The allegations were dismissed for two main reasons: the short duration of the alleged predation (six months), which was considered too short to implement a credible predatory strategy; and the fact that no alternative operator had exited the market during that period.
This case is interesting in three respects:
- it seems to require evidence of actual foreclosure effects, whereas the Commission does not consider that 'it is necessary to show that competitors have exited the market to show that there has been anticompetitive foreclosure';52
- much like under the US antitrust framework, it suggests that predation implies the possibility to recoup losses at a later stage, whereas the Commission and the European Court of Justice recently reiterated that the prospect of such a recoupment was not a prerequisite for the establishment of an exclusionary strategy; and
- the BCA did not perform a cost analysis in this case, but focused on the materiality of the foreclosure effects.
As a general matter under Belgian law, temporary below-cost prices associated with the launch of a new product or the liquidation of stocks is not abusive.53
With regard to margin squeeze, the BCA's practice is generally in line with EU case law. The leading precedent on margin squeeze in Belgium is Base v. BMB, in which the BCA established a margin squeeze on the basis of a comparison between the wholesale prices charged by BMB on the upstream market for call terminations on its network (as charged to competitors) and the retail prices charged by BMB on the downstream market for mobile telephony services to business customers.54 Considering that BMB is 'a vertically integrated undertaking offering termination services on the upstream market and telephony services on the downstream market' and that 'termination services are an essential input for BMB's competitors', the BCA endeavoured to 'verify whether BMB would be able to make a normal profit on its on-net calls if it had to bear the termination cost charged to its competitors'. Having found that this was not the case during the relevant period, it subsequently referred to EU case law to support the conclusion that '[a] margin squeeze may, by its very nature, restrict competition'.55
In the Lampiris v. Electrabel case, the BCA dismissed a margin squeeze allegation among other claims of price-related abuses of dominance by Electrabel.56 The BCA found no margin squeeze. Applying the 'as-efficient competitor test' on the basis of Electrabel's long-term average incremental costs, the BCA found that Electrabel's margins would have remained positive in the retail market even when paying the prices charged to customers in the wholesale market. The BCA further noted that during the relevant period, Lampiris' prices had been equal to or lower than Electrabel's prices, with positive margins, and that Lampiris had grown its market share.
In ABB Industrial Solutions (ABB), the College imposed interim measures on ABB, a producer of 'smart' electricity meter boxes, following a complaint lodged by its competitor Teco NV.57 In Belgium, electricity distribution is regulated at the regional level. Eandis (now Fluvius), the energy grid net operator in the Flemish region, set the mandatory standard type of electricity meter boxes to be installed and launched two public tenders for the boxes and the boxes' lids, respectively. The exclusive right to fabricate and deliver lids was obtained by GE Industrial Solutions (GE), but after its acquisition it was passed on to ABB. ABB then charged a substantially higher price for the lids than the price offered to Eandis in GE's tender bid, lowered its prices for electricity meter boxes, allowing it to squeeze the margin, and created uncertainties in supplies to other companies that were economically dependent on it for these lids. The College found it not manifestly unreasonable to assume prima facie that ABB abused its dominant position.
The offering of rebates characterised as exclusive tends to be treated somewhat strictly by the BCA and courts. On 27 September 2013, the Brussels Court of Appeal upheld the BCA's decision of 30 July 2012 imposing a €245,530 fine on Presstalis,58 a French media distributor, for providing French publishers an extra 2.5 per cent discount (BSC discount) on top of other volume-based discounts in exchange for the exclusive right to export their magazines to the Belgian, Swiss and Canadian markets for a period of 12 months.59 The BCA found that the BSC discount had had a 'strong fidelity effect', and enabled Presstalis to foreclose competitors both in the market for the export of French magazines, and, through its privileged relationship with Belgian distributor AMP, in the market for the distribution of those magazines in Belgium. While confirming that the proof of likely (and not actual) foreclosure effects on competitors that are at least as efficient as the dominant company was sufficient to establish an abuse, the Court adopted a strict view holding that loyalty discounts provided in exchange for exclusivity are as such in violation of Article 102 of the TFEU. The Court concluded that the BCA correctly qualified the BSC discount as a loyalty discount, and ruled that it was sufficient that the BSC discount placed competitors in a less favourable economic position than Presstalis.
With regard to loyalty rebates (not tied to an exclusivity requirement), the BCA adopted an effects-based approach in Base v. BMB, which also involved individualised conditional rebates in the form of free subscriptions, reimbursements proportionate to spending, a reduction on certain types of calls, or free calls and text messages.60 The BCA dismissed the existence of an abuse on the grounds that it was unclear how said rebates were 'likely to have a real influence on the customer's choice'; and how 'the offers from the dominant undertaking on the one hand, and the competitors on the other hand' compared with each other.61 In Algist Bruggeman, however, the BCA reviewed various loyalty-enhancing rebates and found that, because these rebates were aimed at enhancing the loyalty of distributors and bakers to exclude lower-priced competitors, and had no objective justification, they breached Article 102 TFEU and Article IV.2 of the CEL.62
Volume rebates are generally unproblematic under Belgian law. The Brussels Court of Appeal has considered, for instance, that:
the existence of a dominant position does not deprive such an undertaking of its right to grant volume-based rebates to its customers depending on the customer's volume of purchases, if there are objective reasons to believe that the conferral of a financial benefit to certain customers is justified by the business volume realised by these customers and the economies of scale to which they give rise.63
Leveraging allegations have occasionally been made in Belgium.
In National Lottery, the National Lottery acknowledged forms of leveraging in a BCA settlement decision in 2015.64 Following complaints, the Auditorate had investigated the National Lottery's conduct at the time of its launch of Scooore!, a new sports betting product. The Auditorate found that the National Lottery had abused its dominant position through a one-off use of customers' contact details to promote Scooore!. The contact details had been collected through its legal monopoly, where competitors were unable to collect data of a similar scope and nature at reasonable costs and within a reasonable period of time. In addition, the National Lottery had obtained commercially sensitive information about competitors, both before and after the launch of Scooore!, from some of its retailers, for which the sale of lottery products represented a significant share of their turnover.
In MediCare-Market, the College's decision rejecting interim measures did not explicitly refer to leveraging, but found that the practices at hand could constitute an attempt to broaden the scope of pharmacists' legal monopoly beyond the limits set by the legislator (i.e., beyond pharmaceutical products to cover para-pharmaceutical products), which would amount to an abuse of dominance.65
Belgian case law does not contain recent discussions of the principles applicable to tying and bundling practices so that reference can be made to those developed at EU level.66
Refusal to deal
The Bofar case, involving a company specialised in the export of pharmaceutical products, enabled the BCA to provide some guidance regarding refusal to deal practices. As is the case at the EU level, the starting point of the analysis is the basic free trade principle according to which 'each undertaking, irrespective of whether or not it holds a dominant position, should have the right to choose its business partners'.67 Subsequently, the BCA appears to condition a finding of abuse on evidence of a clear intent to foreclose actual or potential competition; the strengthening of the company's dominant position; and the absence of objective justification. In this case, the BCA dismissed the existence of an abusive refusal to deal, relying heavily on the Commission Guidance Paper and modelled its decision on the GlaxoSmithKline case law of the European Court of Justice.68
While the principle according to which dominant players should remain free to choose their trading partners is well understood by the Belgian courts, exceptions to this principle are sometimes found on the basis of ad hoc tests that are applied quite flexibly. This is well illustrated by Ducati v. DD Bikes, in which the Ghent's Court of Appeal upheld a lower court judgment finding Ducati guilty of abusive refusal to supply spare parts and other repair equipment to a former dealer-repairer following the (otherwise lawful) termination of the dealership agreement.69 After finding that Ducati, through its official dealers, was dominant on a Ducati brand-specific market for maintenance and repair, it laid down its own test to appreciate the abusive character of the refusal to supply without any reference to EU or other precedent (which is very uncommon in Belgian case law) and dismissed, for example, free-riding arguments or the relevance of the fact that the repairer sold and serviced other brands of motorbikes. In addition, holding Ducati's refusal to supply abusive, the Court imposed a number of obligations on Ducati aimed at ensuring that DD Bikes could effectively offer after-sales services for Ducati motorbikes in the future. This case should be understood in the context of long-term dealership agreements in Belgium, and testifies to a historical tendency on the part of Belgian courts to protect the interests of dealership holders.
In De Troyer v. Woody, the President of the Ghent Enterprise Court applied the recently adopted legislation prohibiting abuses of economic dependency for the first time in Belgium. The President imposed a cease-and-desist order on Woody, a supplier of children's clothing, for refusal to deal. The order held that Woody had breached the new Article IV.2/1 of the CEL by terminating, unilaterally and without prior notice, its supply agreement with a customer in a situation of economic dependency.70
In Algist Bruggeman, the BCA found an abuse of dominance in denigrating practices against a competitor. The Auditorate found that Algist Bruggeman's circulation of biased internal reports about a competitor's product, aimed to create uncertainty about the microbiological aspects and quality of its competing yeast, and to discourage distributors or bakeries from supplying or using the product.71 Also in 2017, the BCA rejected MediCare-Market's request for interim measures, yet found that the Order of Pharmacists' denigrating press campaign about MediCare-Market's potential harm to the profession of pharmacists and to patients could prima facie constitute an abusive practice.72
In the same case, the BCA clarified in 2019 that, as a general principle, the mere fact for a dominant company of instituting legal proceedings against another company will not be considered as abusive.73 The BCA recalled in this regard that, first, Article 780 bis of the Belgian Code of Civil Procedure already sanctions abuses of process and, second, there are strict conditions under the Promedia case law for entering into litigation to constitute an abuse of dominance, which were not met in this case.74
At the EU level, concentrations are only reviewed under merger control rules and excluded from procedures for restrictive practices, pursuant to Article 21(1) of the Merger Regulation.75 In Belgium, the question of whether mergers and acquisitions that do not meet notification thresholds can be subject to review under Article IV.2 of the CEL (and, in fact, Article IV.1 of the CEL) is a long-standing one, which seems to receive a positive, if qualified, response. In 2006, the Brussels Court of Appeal held that a transaction that does not meet the Belgian notification thresholds may be reviewed under Articles 101 and 102 of the TFEU or Articles IV.1 and IV.2 of the CEL.76 In 2016, the BCA had the opportunity to address the question, after receiving a request for interim measures to suspend the non-notifiable acquisition of Brouwerij Bosteels by AB InBev.77 Alken-Maes contended that the acquisition constituted an abuse of AB InBev's dominance. The BCA referred to the European Court of Justice's Continental Can judgment and acknowledged that concentrations can lead to an abuse of dominance, but also noted the potential harm of interim measures against transactions.78 The BCA then held that an acquisition escaping merger control can be assessed from an abuse of dominance perspective if there are prima facie restrictions on competition, distinct from the effect of the concentration itself, which can be qualified prima facie as an abuse of dominance. This was not the case in the transaction at hand. The Brussels Court of Appeal upheld the BCA decision in 2017.79
Price discrimination under Article IV.2(2) and (3) of the CEL generally requires evidence of a difference in treatment applied to equivalent transactions with the effect of causing a material competitive disadvantage. In Lampiris v. Electrabel, the BCA considered that the services offered on the electricity wholesale market and on the retail market were not equivalent, and hence dismissed the discriminatory pricing claims.80 In InBev, the on-trade (catering) and off-trade (wholesalers and retailers) segments for the distribution of beers and beverages were considered as separate markets, thereby justifying differences in pricing.81 However, the BCA has not always adequately provided support for its decisions on price discrimination.
In bpost,82 the BCA referred to a breach of equal treatment in relation to the grant of rebates without reaching a formal finding of discrimination, thereby creating uncertainty as to the applicable standards. The Brussels Court of Appeal annulled this decision on ne bis in idem grounds, and therefore did not review the finding of breach of equal treatment.83 The Belgian Supreme Court overturned the appeal judgment in 2018, as the Brussels Court of Appeal had improperly applied the ne bis in idem principle.84 The case is now back with the Brussels Court of Appeal, which has to make a new assessment on the merits. On 19 February 2020, the Court issued an interlocutory judgment requesting a preliminary ruling from the European Court of Justice on the interpretation of the ne bis in idem principle under EU law. The preliminary ruling is still pending.85
Similarly, Belgian courts sometimes fail to inquire into the existence of an actual competitive disadvantage resulting from an allegedly discriminatory practice, in contradiction with the principles prevailing at the EU level since Post Danmark.86 In SABAM, for example, the Brussels Court of Appeal found that services offered to 'major customers' were equivalent to those offered to other customers, and that the application of different prices was therefore discriminatory, without inquiring into the actual existence of a competitive disadvantage resulting from that difference of treatment on the downstream market.87
iv Exploitative abuses
It is well known that there is no clear standard to assess what is or makes a price 'excessive', and the comparative test proposed in some EU precedents leaves room for a significant margin of discretion. Excessive pricing claims are relatively frequent in Belgium but seldom established. In the 2014 Electrabel electricity wholesale market case, the BCA found the former incumbent electricity producer and supplier guilty of an abuse of dominance revolving around Electrabel's tertiary production reserve policy,88 which was presented as an unjustified limitation of production.89 Relying on EU precedents, the BCA defined the relevant markets as the production and wholesale trade of electricity in Belgium, on the one hand, and the supply of the tertiary reserve in Belgium, on the other, and found that Electrabel held a dominant position on both. The BCA then narrowed the scope of the abuse to Electrabel's marketing of reserve capacities by means of the application of an excessive margin scale (qualified as a form of 'economic withholding'). Electrabel's scale governing the release of reserve capacity implied the realisation of margins of 50 per cent to 200 per cent above the average wholesale price per MWh achieved on the Belpex trading platform in 2008, which was found 'excessively disproportionate compared to the marginal cost of production'.90
Similarly, in Festival organisers v. SABAM, the Brussels Commercial Court concluded that SABAM's tariffs for concerts and music festivals did not have a reasonable relation to the economic value of the product provided. The copyright collecting society SABAM had based its tariffs on the size of festivals (while this did not change the nature or cost of its services to provide licences), the festival's total turnover (including turnover unrelated to music), and used pricing methods unrelated to actual use of music (while alternative methods of calculation that quantify use do not require additional costs).91 The Court dismissed SABAM's argument that the tariffs were increased to match those in neighbouring countries.92 On appeal, the Brussels Court of Appeal stayed the proceedings to request a non-binding opinion (amicus curiae) from the European Commission on whether SABAM's tariffs are an infringement of Article 102 of the TFEU.
The BCA and the courts often dismiss excessive pricing claims.
In Lampiris v. Electrabel and NMBS v. Electrabel, the BCA and the Brussels Court of Appeal both dismissed similar excessive pricing claims.93 Both found that Electrabel's incorporation into its wholesale prices of the value of emission allowances obtained for free was economically justifiable, since the allowances could otherwise be traded. Beforehand, the leading precedent involved the allegedly excessive character of an increase in Electrabel's natural gas prices.94 After comparing Electrabel's prices with a number of competitive price benchmarks – for example, prices of alternative operators, regulated prices and prices applied in other EU Member States – the BCA was not able to reach a finding of infringement.
More recently, in another case involving SABAM, the Antwerp Enterprise Court asked the European Court of Justice whether an abuse exists under Article 102 of the TFEU, whether or not read in conjunction with Article 16 of Directive 2014/26/EU on collective rights management, when a collecting society (with a factual monopoly in a Member State) applies a remuneration model with a fixed rate, instead of a rate taking account of the actual share of the protected music repertoire played during the event, and makes licence fees dependent on external elements (e.g., admission price). The European Court of Justice ruled that SABAM's remuneration model does not constitute an abuse of dominance, provided that the actual fees imposed are not disproportionate to the nature and scope of the use, the economic value generated by that use and the economic value of the service provided to society. The Court also held that no other methods, allowing for a more accurate identification and quantification of the use to achieve the same legitimate aim, should be available.95 The Antwerp Enterprise Court will now have to implement this ruling.
Moreover, loose findings of excessive prices are sometimes encountered in judgments of Belgian courts. This was the case in the AMP judgment,96 where the Brussels Court of Appeal considered excessive an increase in AMP's minimum distribution fee because of its lack of costs-based justification, as established by an expert report. Likewise, in Base v. Belgacom, the Antwerp Commercial Court has held Belgacom guilty of charging excessive prices, as it failed to pass on to consumers a reduction in the mobile termination charges of competing operator Base, as mandated by the telecommunications regulator.97 By holding that prices 'were higher than those that should normally be applied', the Court essentially sanctioned Belgacom's failure to comply with a regulatory decision and gave the concept of excessive pricing an interpretation driven by fairness considerations.98
The CEL grants the BCA the power to issue interim orders in cases of 'price or margin problems', 'abnormal evolution in prices' or 'structural market failures' established by a report of the Price Observatory, with the aim of preventing serious, actual and irreparable harm to companies, consumers, or the general economic interest.99 These orders, which can last for a maximum of six months, are adopted pursuant to summary proceedings during which parties are only heard orally and benefit from a mere five-day period for reviewing any submissions and supporting evidence. Orders are then notified to the Minister for Economic Affairs, who shall submit a plan to the government within six months proposing a 'structural modification of the functioning of the market concerned'.100 No such reports or orders have yet been issued. Thus, the scope of the causes of action, as well as the possible reach of these orders, remain largely unclear, and therefore are a source of concern for the business community.101 This peculiar regime finds its origin in a frustration of political actors with the perceived limitations of dominance principles (notably with notions such as 'excessive prices') and of available remedies.102
In 2019, Belgium saw the federal government using its price regulation powers under Article V.12 of the CEL to cap the price of a medicine. On 5 April 2019, consumer organisation Test Achats filed a complaint with the BCA, claiming that pharmaceutical company Leadiant abused its dominant position by charging an excessive price for its drug CDCA. CDCA is indicated in the treatment of CTX, a rare genetic metabolic disorder. The drug had been launched in the Belgian market several years earlier for the treatment of gallstones, however, at a price that was more than 300 times lower. On 4 September 2019, the Belgian Minister of Economy decided to cap the price of the drug for use in the CTX application to one quarter of the Leadiant's initial price. The Minister also requested the BCA to prioritise the investigation into Leadiant's potential abuse of dominance in relation to the sale of CDCA and called upon the European Commission to assess and review the rules governing 'orphan medicines'.
Remedies and sanctions
Article IV.48(1) of the CEL entitles the BCA to find an infringement of the rules on dominance and to order the termination of the commercial practice in question. In turn, Article IV.70(1) of the CEL provides for the possibility of imposing a fine to sanction the abusive character thereof. As at the EU level,103 it was in a dominance case that the BCA imposed its highest individual penalty ever, of an amount of €66.3 million levied against Belgacom (now Proximus) in a margin-squeeze decision dated 26 May 2009.104
Belgian remedial practice differs from that observed at the EU level in that, whereas this is extremely rare at the EU level, the BCA commonly adopts interim measures in the course of dominance proceedings.
Fines are capped at 10 per cent of the worldwide turnover realised in the last full year preceding the adoption of a decision.105 Below that limit, fines are calculated according to Fining Guidelines issued in 2020.106 These Guidelines provide that the BCA applies the same methodology as the European Commission, with a limited number of exceptions destined to make it specific to Belgium.107 Most importantly, the starting amount of the fine is based on Belgian sales (i.e., sales realised on the Belgian territory and for exports). Moreover, the Guidelines provide for specific rules for the assessment of the aggravating factor of repeated infringement. The CEL also foresees the possibility of the BCA imposing administrative fines on individuals, but that provision is not applicable to dominance cases (only to specific types of horizontal infringements).108
ii Behavioural remedies
As previously noted, the BCA (and the Belgian courts) typically issues a cease-and-desist order when finding an abuse of dominance. In contrast, behavioural remedies are uncommon, notably because commitment procedures have only been rarely used to date. Over the years, however, the BCA has developed an important practice of imposing positive obligations on an interim basis pending the completion of investigations into alleged abuses of dominance. That practice is rooted in Article IV.64(1) of the CEL, whereby the College may 'adopt interim measures intended to suspend the anticompetitive practices under investigation, if there is an urgent need to avoid a situation likely to cause serious, imminent harm that would be difficult to remedy [ex post]'.
The powers of the BCA to impose interim measures in pending proceedings have been strengthened since the entry into force of the CEL. First, establishing a risk of 'irreparable harm' is no longer required.109 Second, and importantly, interim proceedings are subject to strict deadlines. In particular, the CEL provides that an oral hearing preceded by the submission of written briefs will be held within one month of the filing of a request for interim measures.110 Subsequently, the BCA will have to render its decision within one month of the oral hearing, with failure to do so amounting to a rejection of the request.111
In 2019, the College imposed interim measures to ensure continuity of the FM broadcasts of the Flemish Radio and Television Broadcasting Organisation (VRT) in the execution of its public service mission.112 VRT's FM broadcasts are transmitted through masts. After a public tender, some of these masts were sold by VRT to Norkring Belgium along with a service level agreement (SLA) to ensure continuing use thereof for FM broadcasting. With the end of the SLA in sight, VRT made a public tender request for FM broadcasting services, which was not awarded to Norkring but to Broadcast Technology and Development (Broadcast Partners). To provide VRT with FM transmission services, Broadcast Partners was dependent on Norkring's masts as there were no alternatives available. However, it was unable to enter into an agreement on reasonable terms with Norkring for the use of these masts. While VRT did not demonstrate that this was prima facie likely to constitute an abuse of dominance, the BCA held that the general economic interest of continuing the VRT's public service mission to provide FM broadcasts was sufficiently large to conclude for a likely prima facie abuse of dominance if continuity is not guaranteed.
On 23 January 2020, the BCA imposed interim measures on the BGB. HCSB, a Belgian bumper-pool balls manufacturer, submitted a complaint to the BCA claiming that the BGB restricted competition in the market for the supply of billiard balls. According to the BCA's interim measures, the BGB should have organised a tender to select billiard balls based on objectively identified characteristics. On 28 August 2020, the BCA found that the BGB's tender conditions regarding its scope of application and the balls' technical requirements did not comply with the interim measures ordered seven months earlier. The BCA urged the BGB by way of a penalty payment to comply with the interim measures it had ordered on 23 January 2020.113
The BCA's willingness to make use of interim measures was sustained by the Brussels Court of Appeal. In the 2016 FEI case, the BCA ordered the suspension of the FEI's exclusivity clause, prohibited the FEI from suspending or otherwise sanctioning athletes or horses for participating in Global Champions League competitions, and requested that the FEI inform its members (national federations), athletes, officials and organisers of these measures by 31 August 2015.114 After finding that the FEI had not properly communicated the measures, the BCA determined the content of the messages to be published on the FEI's website and to be sent to national federations and other associations by 30 November 2015, subject to penalty payments.115
Also in the FEI case, the BCA ordered the FEI and equestrian competition organisers to suspend their memorandum of understanding (MOU) setting the participation rules for FEI-accredited events insofar as it reduced the share of invitations based on official rankings below 60 per cent until the adoption of a decision on the merits, and prohibited any points for the official FEI ranking from being granted as a result of Global Champions Tour competitions as long as invitations for these events did not comply with the requested share.116 The BCA considered that the cumulative conditions to grant interim measures were fulfilled, namely that:
- the MOU prima facie constituted an infringement of competition rules, as FEI fully controls the access to the market by virtue of its General Regulations and the invitation system discriminates against riders who are not part of a fee-paying team; and
- there was a risk of serious and irreparable harm to the applicants, since the decrease in the invitations sent to riders on the basis of their ranking alone is likely to seriously affect the riders' short-term interests and their careers.
While the BCA imposed penalty payments in 2018 for non-compliance with the interim measures ordered the year before,117 the Brussels Court of Appeal eventually annulled the BCA's decision later in the year on grounds of inappropriate reasoning.118 Interestingly, since the BCA did not request in its submissions that the Court use its full appellate jurisdiction, the Court could neither rectify the College's reasoning nor review the case on the merits (i.e., examine whether the BCA rightly concluded that interim measures were justified).
In the Telenet case, the BCA's interim measures ordered Telenet and VV to either suspend the exclusivity clause in their agreement and offer the broadcasting rights to interested parties on reasonable and non-discriminatory terms and conditions, or to suspend the full exclusive agreement from the end of the 2015–2016 season and reallocate the VV broadcasting rights, whether on an exclusive basis or not, under a transparent and non-discriminatory tender procedure.119
iii Structural remedies
There has been no recent reported case of structural measures (such as split-ups or divestitures) imposed or ordered at the Belgian level to remedy an abuse of dominance.
The structure of the BCA, and the procedure applicable to dominance cases, was entirely redesigned upon the entry into force of the CEL in 2013.
In a nutshell, a single BCA composed of two functionally distinct entities, namely the College in charge of deciding cases and the Auditorate in charge of investigations, replaced the dual structure previously in place. The Auditorate carries out investigations either on an ex officio basis, upon a complaint, or at the request or injunction of the competent minister. Upon completion of its investigation, the Auditorate has a choice between closing a case and issuing a formal statement of objections to which parties are entitled to reply prior to the transmission of the case to the College for decision.120 That transmission occurs by means of the issuance of a non-binding draft decision reflecting the replies to the statement of objections.121 The College then hears the parties both in writing and orally before rendering its decision,122 which can then be appealed before the Brussels Court of Appeal. The procedure is controversial, however, primarily because it prevents parties from submitting new factual evidence before the College (unless the draft decision raises points that were not addressed in the statement of objections). Moreover, the CEL sets strict time limits for the submission of written briefs by the parties, namely one month to reply to the statement of objections, and two months to comment on the draft decision and review the case file.123
Complainants are entitled to appeal to the College any decision by the Auditorate dismissing their complaint and to review the evidence referred to in the Auditorate's decision. If the Auditorate acts upon their complaint, they may have access to a non-confidential version of the draft decision 'if the College deems it necessary'.124 As a rule, they do not have access to the case file unless the President of the BCA decides otherwise, and then only to a reduced version of the file containing only the evidence referred to in the draft decision (i.e., not the entire case file).125 Upon request, complainants can be heard orally by the College.126
The CEL provides for the possibility of closing cases by means of a commitment decision adopted by the College.127 Commitment decisions do not involve a formal finding of infringement, which implies that plaintiffs cannot solely rely on such decisions as establishing fault under Article 1382 of the Belgian Civil Code as the basis for a follow-on damages claim before Belgian courts. Whereas the Commission relies heavily on commitment procedures to deal with dominance cases, the BCA has adopted very few commitment decisions to date.128 Even though not formally a commitment decision, but a dismissal, the Immoweb case set a precedent in Belgium for de facto commitment decisions at the level of the Auditorate. In 2015, the Auditorate opened an investigation into Immoweb's use of most-favoured nation (MFN) clauses in its contracts concluded with software developers for real estate agencies. After a preliminary analysis, the Auditorate concluded that Immoweb, the operator behind Belgium's most-frequented real estate website, was dominant on a national market for web portals dealing primarily in real estate, and that the MFN clauses prevented Immoweb's competitors from negotiating more commercially favourable terms with software developers, which increased the barriers to entry. Immoweb committed unilaterally to terminate the clauses at issue and not to include such MFN clauses in contracts concluded in the following five years. On this basis, the Auditorate decided to close its investigation, essentially dismissing the case without coming to a final determination about any abuse of dominance under Article IV.2 of the CEL or Article 102 of the TFEU, and without issuing a formal commitment decision under Article IV.47 of the CEL.129
In addition, the CEL contains formal and informal settlement procedures that are also applicable in dominance cases (i.e., not only in collusive cases). The formal settlement procedure can be initiated at any time prior to the issuance of a draft decision.130 If an allegedly dominant company indicates its willingness to engage in formal settlement discussions, the Auditorate will provide it with a summary of the objections and of the relevant pieces of evidence, as well as a range of possible fines. The company in question is then required to recognise its liability and to accept the fine estimate.131 On that basis, the Auditorate will then issue a draft settlement decision proposing a fine, on which it 'may' (in practice, 'does') apply a 10 per cent reduction. Similarly, it 'may' reflect in the proposed fine commitments to compensate third parties for any harm suffered. Upon acceptance of the proposed fine, the Auditorate then issues a final settlement decision, which cannot be appealed. As is the case at the EU level, settlement discussions can be interrupted at any time. Settlement discussions between the Auditorate and the relevant company are considered confidential. Uncertainty remains as to the rights of complainants and other interested parties in commitment and settlement procedures. The National Lottery case represents the first settlement decision adopted in a dominance case.132 The Auditorate applied the 10 per cent reduction after having already reduced the fine for mitigating circumstances based on the absence of a proven anticompetitive effect of the practices in question and the National Lottery's full cooperation.133
The president of the BCA can also make use of an informal settlement procedure to resolve questions and disputes.134 The informal settlement procedure does not entail the imposition of sanctions or binding conditions. In general, the President will only engage in an informal settlement procedure when the practice in question has not yet been implemented and raises a novel question, and when it is clear that the Auditorate does not have the intention to open a formal investigation.135
Generally, legal advice (and associated correspondence), as rendered by in-house counsel who are members of the Belgian Institute for Company Lawyers, benefits from a protection equivalent to legal privilege, and therefore cannot be seized by the BCA during inspections (or by any other public authority).136 However, Article IV.79(1) of the CEL unduly limits the effectiveness of that protection, for it allows parties to bring an appeal against the seizure of documents during inspections only after the issuance by the Auditorate of the statement of objections, and 'only to the extent that the documents in question are invoked in support of the said objections'.137
Decisions of the BCA may be appealed before the Brussels Court of Appeal, apart from settlement decisions that may not be appealed by the settling parties under Belgian law. The Court has shown willingness to rule against the BCA, in particular with respect to companies' rights in the context of inspections.
A case in point is Distripaints v. Novelta, where the Brussels Court of Appeal confirmed the BCA's determination of 'in-scope' documents, but only after having requested the BCA to provide an expanded statement of reasons to justify the relevance of the documents it collected during its inspections.138 Another example is the 2020 judgment of the Brussels Court of Appeal that partially annulled the BCA's Base v. BMB decision of 26 May 2009, as it was based on evidence obtained through an illegal on-site inspection conducted by the Auditorate without a warrant.139
Regarding interim measures, the Court annulled the BCA's interim measures decision ordering the suspension of an MOU on grounds of inappropriate reasoning.140 The Court noted that, while the College explicitly dismissed the MOU from the case file due to its confidential nature, the decision nevertheless contained multiple references to the MOU, including in the preliminary assessment of the College, which resulted in the suspension of the MOU. These internal contradictions vitiated the reasoning of the decision, which the Court therefore annulled.
Article IV.32 of the CEL provides that members of the BCA can be recused for the same reasons as those justifying the recusation of judicial judges under Article 828 of the Belgian Code of Civil Procedure. In 2018, these provisions were applied for the first time since the entry into force of the CEL in 2013. In FEI, the Brussels Court of Appeal ordered three members of the College (including the president of the BCA) involved in the adoption of the decision it annulled earlier in the same year to abstain from sitting in the College that would be responsible for reviewing the case.141 The president of the BCA and the two other assessors contended that, as the decision was annulled on procedural grounds, the administrative procedure could still be carried out by the College that adopted this decision.
The Brussels Court of Appeal, however, found that the criteria for recusation were satisfied in the case at hand. The Court held that the new decision would necessarily be based on the same circumstances of fact and law as those underlying the annulled decision; a College sitting in the same composition would therefore have an incentive to merely adjust its reasoning in a way that supports its original conclusions (i.e., that interim measures were justified) rather than starting over with an impartial assessment of the case. The Court, therefore, ordered the president of the BCA and the two assessors to abstain from sitting in the College that will examine the case in the future. The case on the merits is still ongoing.
Finally, the CEL contains an antitrust blocking statute, subject to exceptions to be set forth by Royal Decree.142 The principle of the primacy of EU law makes that provision unenforceable against requests from the Commission or from the competition authorities of other EU Member States addressed pursuant to Regulation 1/2003.
As previously noted, claims for abuse of dominance are also brought before Belgian courts. One avenue for such claims involves reliance on the rules on unfair trade practices. It is settled case law that claimants alleging breaches of Article IV.2 of the CEL can also obtain redress pursuant to the CEL's unfair trade practices provisions (replacing the previous Belgian Act on Unfair Trade Practices).143 The CEL, in particular, provides for a special and particularly effective procedure to obtain a cease-and-desist order at short notice from the president of the competent commercial court.144 The procedure constitutes a credible alternative to proceedings before the BCA in those cases where plaintiffs have sufficient elements at their disposal to discharge the applicable burden of proof (or can readily identify the relevant pieces of evidence and request their production in court). However, at present the Belgian Code of Civil Procedure does not contain discovery rules comparable to those existing in the United States or the United Kingdom. In BIT Marketing v. SEB and Bierhalle Demeyer NV v. Duvel Moortgat, the claimants appealed judgments denying cease-and-desist orders. Their appeals were dismissed because the claimants had not provided sufficient evidence to find that either SEB or Duvel Moortgat were dominant in their respective markets.145
Damages claims can also be filed to obtain compensation for harm suffered as a result of an (alleged) abuse of dominant position, either on a stand-alone basis or as a follow-on action.146 As the law currently stands, the CEL does not include a specific statutory basis for that purpose, so that general tort law principles apply and require plaintiffs to establish a fault imputable to the defendant, an injury suffered by the plaintiff, and a causal link between the fault and the injury.147 In 2017, the Belgian legislator implemented the EU Damages Directive, and thereby provided a specific regime for damage claims based on Articles IV.1 and IV.2 of the CEL or Articles 101 and 102 of the TFEU, or on both. Whereas the Damages Directive provides for a presumption that cartels cause harm, it does not include such presumption for abuses of dominance. Under Belgian tort law, damages are awarded according to the restitutio in integrum principle, whereby the victim must be compensated for the entire harm suffered (i.e., to restore the status quo ante) but only the actual harm suffered. Hence, Belgian law allows for the recovery of any direct losses and profits forgone (including losses of business opportunities), but does not recognise treble or punitive damages. In spite of the lack of clear precedent in the antitrust field, commentators have commonly admitted that the passing-on defence can be invoked by defendants, a position that should be formalised in the implementation of the Damages Directive. Upon request, damage awards can also include (simple, not compound) interest from the date the injury occurred, and be complemented by a fixed (and relatively modest) indemnity of procedure supposed to cover attorneys' fees and other costs and disbursements.
The Belgacom v. Base & Mobistar case, discussed in the 2016 edition of this chapter, addressed the question of an undertaking's fault in cases of abuse of dominance.148 The former incumbent telecommunications operator, Belgacom, and mobile competitors Mobistar and Base had been involved in a long-running damages litigation for alleged pricing abuses. The abuses revolved around the different mobile termination rates charged by Belgacom depending on whether calls were initiated and terminated on its network (on-net) or initiated from other networks and terminated on its network (off-net). While the parties settled the litigation in October 2016, the Brussels Court of Appeal held before that Belgacom should have known, in light of established EU precedents, that its alleged practices would constitute breaches of Article 102 TFEU and therefore faults on its part (if they were confirmed by experts). With respect to the network effects in particular, the Court noted that the fact that the EU courts had not yet expressly decided on such practices did not mean that these could not amount to anticompetitive conduct. In particular, the Court held that the language of Article 102(a) TFEU,149 existing EU case law and decisions, and Commission guidance, made it reasonable to predict that an unjustified difference between the costs of on-net and off-net calls would not be defensible in courts.
In fact, but for a small number of unsuccessful cases,150 recent practice appears extremely limited, as only two cases have been reported since 2004 of damages awarded based on a finding of abuse of dominance. The first case was peculiar, for the abuse was found to arise from meritless actions brought by Kinepolis, an (allegedly dominant) operator of film theatres, to stop or delay the anticipated construction of a new theatre complex in the Liège region by rival UGC, as well as from the pre-emptive purchase of land constraining the development of such project. By a judgment of 17 June 2010, the Brussels Commercial Court awarded damages compensating UGC for the legal fees incurred as a result of Kinepolis' abusive practices, as well as for the consultancy fees and costs associated with a bank guarantee contracted by UGC in association with its project. In contrast, the Court refused to consider the loss of operating income that would have resulted from the construction of the complex for it was deemed too speculative. Interestingly, the Court also clarified that damages claims can proceed (and do not have to be stayed) in spite of parallel proceedings pending before the BCA.151
The second case to date is Honda, where the Ghent Commercial Court addressed the question of the statute of limitations of actions for damages.152 In its 1999 decision (which became final in 2011, after multiple appeals), the BCA (then Competition Council) found that Honda had abusively imposed overly burdensome conditions on parallel importers for obtaining conformity certifications in Belgium; the parallel importers competed with Honda's official authorised distributors. In 2006, several parallel importers of Honda motorcycles filed an action for damages against Honda. Honda argued that the plaintiffs' claims were time-barred pursuant to Article 2262 bis of the Belgian Civil Code, which provides for a five-year limitation period for tort-based damages claims, in light of the 1999 BCA decision. The Court referred a request for a preliminary ruling to the Belgian Constitutional Court regarding the starting point of the limitation period for damages claims arising from breaches of competition law. In 2016, the Constitutional Court ruled that limitation periods of antitrust damages claims cannot expire before a final decision of the competition authority (or the end of the investigation by other means).153 In its judgment, the Ghent Commercial Court applied this principle, and held that the parallel importers' damages claims were not time-barred because they were filed while the appeal against the BCA decision was still pending. The Court held that the harm, which stemmed from events dating back as far as 25 years, was practically impossible to quantify. The Court agreed with Honda that the plaintiffs could not bring forward sufficient evidence of the harm, but considered that not granting damages would be contrary to the objectives pursued by the rules on the private enforcement of competition law, and therefore assessed the harm ex aequo et bono and granted each plaintiff €20,000 in damages, plus interest accrued since 1997.
Finally, Belgian law permits plaintiffs to seek collective redress. Interestingly, the Collective Actions Act provides that only consumers and other organisations satisfying certain legal conditions, as well as the Federal Ombudsman for Consumers, are entitled to file a claim on behalf of a group for collective recovery, and that they may do so only before the Brussels courts.154 It is up to the court to decide whether to apply an opt-in or opt-out system. Likewise, the court must systematically require the parties to first explore the possibility of negotiating a settlement. It is only in the case of failure of such settlement that the court may hear and decide on the merits of the damages claim.
In its priority policy statement for 2021, the BCA identified the priority areas for enforcement, as, inter alia, digital economy, telecommunications, retail, services to consumers (in particular, regulated professions), public procurement, energy, pharmaceuticals and logistics (ports, and road, rail and water networks).155 These sectors were substantially the same as in the BCA's 2020 policy statement, with the exception of energy, where the BCA intends to closely monitor the phasing out of nuclear energy in Belgium and prevent any anticompetitive conduct by energy suppliers in this context.
The application in practice of the revised Belgian competition rules, which entered into force on 22 August 2020, are important to monitor, including regarding the investigation of the potato sector requested by the federal minister for small and medium enterprises. The new regime prohibiting abuses of economic dependency allows the BCA to investigate abuses by non-dominant undertakings under the same procedural rules as those applicable to abuses of dominance.156 This development is likely to increase litigation over the coming years. Moreover, the increase of the cap on fines for competition law infringements from an undertaking's national to its global turnover is likely to result in higher fines in dominance cases going forward. While the BCA has indicated its support for measures to fight against abuses of market power beyond Article 102 of the TFEU and Article IV.2(/1) of the CEL, the BCA president has stated that the enforcement of such new provisions would require additional staff. The emerging administrative practice of the BCA and subsequent interpretation by the Belgian judiciary will have to articulate how the concept of economic dependency should be applied in practice. One topic of particular interest will be the concurrent application of the provisions on abuse of dominance and abuse of economic dependency.
1 Robbert Snelders is a partner and Nuna Van Belle and François-Guillaume de Lichtervelde are associates at Cleary Gottlieb Steen & Hamilton LLP. The authors wish to thank Louis Amory, stagiaire at Cleary Gottlieb Steen & Hamilton LLP, for his valuable research assistance.
2 Draft Bill on the Protection of Economic Competition, Explanatory memorandum, Documents of the Parliament (Chamber of Representatives), Ordinary Session, 2005–2006, No. 2180/001, p. 19.
3 ibid., p. 10.
4 Case 85/76, Hoffmann-La Roche & Co AG v. Commission  ECR p. 461, Paragraph 38.
5 Draft Bill on the Protection of Economic Competition, Comments on Articles, Chamber 51-2180/001, p. 36 (see discussion on Article 2, which became old Article 1 of the 2006 Act on the Protection of Economic Competition).
6 Communication from the Commission – Guidance on the Commission's enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings  OJC 45/7 (Commission Guidance Paper).
7 For an example of such alignment in the past, see Brussels Court of Appeal, 27 February 2014, Bureau d'Assurances Desert v. AXA (Case 2013/AR/1783), Paragraph 6, as published in TBM v. RCB, 2014/4, p. 353.
8 Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJEC, 4 January 2003, L 1/1-1/25.
9 Law of 4 April 2019 amending the Code of Economic Law in relation to abuses of economic dependency, abusive clauses and unfair trade practices between undertakings (Belgian Official Gazette, 24 May 2019). The provisions on abuse of economic dependency entered into force on 22 August 2020.
10 Article IV.70, Paragraph 2 of the Code of Economic Law (CEL).
11 This theory was upheld by the Belgian Supreme Court in 2000 (see Belgian Supreme Court, 7 January 2000, Multipharma v. Louis Widmer, RCJB, 2001, p. 255).
12 Several other EU Member States have adopted rules on abuses of economic dependency (e.g., Austria, Cyprus, France, Germany, Greece, Hungary, Italy, Poland, Portugal, Romania and Spain).
13 Article I.6, 4° of the CEL defines 'economic dependency' as a 'position of subjection of an undertaking towards one or more other undertakings characterised by the absence of a reasonable equivalent alternative, available within a reasonable period of time, and under reasonable conditions and costs, allowing this or each of these undertakings to impose obligations or conditions that cannot be obtained under normal market circumstances'.
14 Press release of 4 March 2021, available at: https://clarinval.belgium.be/fr/secteur-de-la-pomme-de-terre-david-clarinval-depose-une-requete. The Minister declared that '[t]hanks to the reform of the economic law, as minister for small and medium enterprises, I have the legal means to take action against a potentially damaging situation for potato producers.' Note that requests to investigate are typically made on the basis of Article IV.39 of the CEL. Competition concerns relate to certain contractual clauses between farmers and potato processing companies, which require farmers to sell specific quantities of potatoes to potato processing companies. If the set quantities are not reached, the clauses allow buyers to buy potatoes from other sellers at the expense of the original farmers, even when production decreases have occurred due to force majeure. According to the minister, such clauses constitute an abuse of economic dependence.
15 Law of 2 May 2019 amending Book I 'Definitions', Book XV 'Enforcement', and replacing Book IV 'Competition Law' of the Code of Economic Law (Belgian Official Gazette, 24 May 2019). The Law entered into force on 3 June 2019.
16 ibid., Article IV.84, Paragraph 1, 2°.
17 Article 15(1) of Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, OJ, 14 January 2019.
18 As is the case at EU level, compliance with the applicable regulatory framework does not shelter dominant undertakings from the application of competition – including dominance – rules (see, for example, Competition Council, 10 December 2012, Decision 2012-P/K-32, Publimail, Link2Biz International and G3 Worldwide Belgium v. bpost, Paragraph 281). See also the presumption of discriminatory abuse of dominance provided for at Article 23 ter of the 1999 Electricity Act (Belgian Official Gazette, 11 May 1999).
19 Article IV.12 of the CEL.
20 See, for example, Antwerp Commercial Court, 17 July 2008, Base v. Belgacom (Case A/07/6775).
21 College, 23 January 2020, Decision BMA-2020-VM-04; College, 28 August 2020, Decision BMA-2020-V/M-28.
22 College, 16 March 2020, Decision BMA-2020-V/M-13.
23 European Court of Justice, C-519/04 P, Meca-Medina v European Commission, 18 July 2006.
24 Bpost had applied a per-sender rebate model, whereby quantity rebates are based on the volume of mail supplied by senders. This model was found to discriminate against 'consolidators', which act as intermediaries by preparing, processing and transporting mail to bpost's distribution points, as these were not considered as single senders.
25 Case C-340/13, bpost v. BIPT .
26 Enshrined in Article 50 of the European Charter of Fundamental Rights and Article 4 of the Seventh Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms.
27 The Belgian Institute for Postal services and Telecommunications and the Belgian Competition Authority (BCA) respectively applied postal regulation and competition law to bpost's rebate scheme.
28 Belgian Supreme Court, 22 November 2018, Belgian Competition Authority v. bpost (Case C.17.0126.F/1).
29 Case C-524/15, Menci , Paragraphs 40 and 44; and Case C-537/16, Garlsson Real Estate and Others , Paragraphs 42 and 46; joined Cases C-596/16 and C-597/16, Enzo Di Puma , Paragraphs 39–42.
30 Case C-17/10, Toshiba Corporation e.a. .
31 Brussels Court of Appeal, 7 October 2020, Proximus v. BCA (Case 2020/6817); Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB.
32 Brussels Court of Appeal, 9 October 2019, Proximus v. BCA (Case 2019/7524).
33 Ghent Enterprise Court, 28 October 2020, De Troyer v. Woody (Case A/20/02490).
34 ECJ, 25 November 2020; Case C-372/19, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Weareone.World BVBA and Wecandance NV.
35 See, for example, Competition Council, 28 September 2010, Decision 2010-P/K-42-AUD, Freedom CVBA v. InBev Belgium NV, Paragraph 75.
36 For example, in Base v. Belgacom Mobile, the Competition Council found that, with regard to the geographical scope, all parties seemed to agree that the relevant market was the Belgian territory, and the Competition Council subsequently adopted such a decision (Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB, Paragraph 130).
37 Commission Notice on the definition of relevant market for the purposes of Community competition law  OJC 372/5.
38 Competition Council, 21 March 2008, Decision 2008-P/K-10-AUD, FEGE v. Idelux, p. 6; Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB, Paragraph 139.
39 See, for example, Auditorate, 26 March 2015, Decision ABC-2015-P/K-09-AUD, Lampiris v. Electrabel, Paragraphs 101–118.
40 In Unie der Belgische Ambulancediensten v. Belgische Rode Kruis (Decision No. 2001-V/M-22), the BCA considered that a market share of above 40 per cent gives a 'strong indication' of dominance, whereas a market share below 30 per cent, in the absence of additional factors, is 'not indicative' of dominance. For a discussion relying on the Commission Dominance Paper, see also Decision No. BMA-2014-P/K-23-AUD of the Auditorate of 2 December 2014 in Case MEDE-P/K-11/0027, NV Handling CO v. Sony Pictures, The Walt Disney Company (Benelux), Universal Pictures International Belgium, Twentieth Century Fox Film Belge and Warner Bros Studios Leavesden Limited. For a discussion by a Belgian court, see, e.g., Brussels Court of Appeal, Bureau d'Assurances Desert v. AXA Belgium, 27 February 2014 (Case 2013/AR/1783), TBM v. RCB, 2014/4, p. 352.
41 Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB, Paragraphs 150 and 154.
42 ibid., Paragraph 155 et seq.; Competition Council, 27 October 2009, Decision 2009-P/K-26-AUD, vzw Federatie HoReCa Wallonie and Vlaanderen et al v. InBev NV, Paragraphs 62–64; Competition Council, 3 July 2008, Decision 2008-I/O-41-AUD, Electrabel NV, Paragraphs 77–78; and Competition Council, 5 October 2007, Decision 2007-V/M-25-AUD, Merck Generics Belgium BVBA, Generics UK v. Merck Sharp & Dohme BV and MSD Overseas Manufacturing Company, Paragraph 21.
43 For example, the BCA has considered that a difference of 40 per cent between the market share of a dominant undertaking and its largest competitor constitutes in itself an indication of dominance (see Competition Council, 5 October 2007, Decision 2007-V/M-25-AUD, Merck Generics Belgium BVBA, Generics UK v. Merck Sharp & Dohme BV and MSD Overseas Manufacturing Company, Paragraph 21).
44 In its decision of 26 March 2015 in Case CONC-P/K-09/0002, Lampiris v. Electrabel, Paragraph 106, the Auditorate relied on a decision of the College of 18 July 2014, which had found Electrabel to be dominant on the wholesale electricity market, in Case CONC-I/O-09-0015, Electrabel v. Wholesale Electricity Market (Decision ABC-2014-I/O-15).
45 Auditorate, 2 December 2014, Decision BMA-2014-P/K-23-AUD, NV Handling CO v. Sony Pictures, The Walt Disney Company (Benelux), Universal Pictures International Belgium, Twentieth Century Fox Film Belge and Warner Bros Studios Leavesden Limited. In a recent case, the BCA closed an investigation into potential collective dominance by cargo handling companies at Brussels airport; see Auditorate, 17 February 2015, Decision BMA-2015-I/O-02-AUD, Cargo handling at Brussels National Airport. For a case mixing concerted practices and collective dominance considerations, see judgment of the Liège Court of Appeal of 5 February 2009 in AGIM v. Oxycure, TBM v. RCB, 2009/3, p. 60.
46 Case C-413/06 P, Sony v. BMG , Paragraphs 122–124, summarised by the Auditorate in Paragraph 52 of the decision.
47 Ghent Court of Appeal, 1 October 2014, Ducati v. DD Bikes (Case 2010/AR/3351).
48 See, for example, Brussels Court of Appeal, 3 November 2005, SABAM v. Productions & Marketing, TBM v. RCB, 2006/4, p. 320.
49 See, for example, Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB, Paragraphs 190 and 275 et seq.
50 See, for example, Antwerp Commercial Court, 17 July 2008, Base v. Belgacom (Case A/07/6775).
51 Competition Council, 3 July 2008, Decision 2008-I/0-41-AUD, Electrabel NV.
52 Commission Guidance Paper, Paragraph 69.
53 See, for example, Brussels Commercial Court, 20 November 2006, Docpharma v. Eli Lilly Benelux, TBM v. RCB, 2007/1, p. 90.
54 Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB, Paragraph 260.
55 ibid., Paragraph 313, which refers to Commission Decision, 4 July 2007, Case COMP/38.784, Telefonica, Paragraph 543; Case T-271/03, Deutsche Telekom v. Commission  ECR II-477, Paragraph 166; and Case T-203/01, Michelin  ECR II-4071, Paragraphs 239 and 241.
56 Auditorate, 26 March 2015, Decision ABC-2015-P/K-09-AUD, Lampiris v. Electrabel.
57 College, 3 September 2018, Decision BMA-2018-V/M-28.
58 Competition Council, 30 July 2012, Decision 2012-P/K-20, Tondeur Diffusion v. AMP & Presstalis.
59 Brussels Court of Appeal, 27 September 2013, Presstalis SAS (Case 2012/MR/5).
60 Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB.
61 ibid., Paragraphs 192–199.
62 Auditorate, 22 March 2017, Decision BMA-2017-I/O-07-AUD, Algist Bruggeman NV, Paragraphs 164–168.
63 Brussels Court of Appeal, 3 November 2005, SABAM v. Productions & Marketing (Case 2004/MR/7), Paragraph 14, TBM/RCB 2006/4, p. 320.
64 Auditorate, 22 September 2015, Decision BMA-2015-P/K-27-AUD and Decision BMA-2015-P/K-28-AUD, Stanleybet Belgium NV, Stanley International Betting Ltd, Sagevas SA, World Football Association SPRL, Samenwerkende Nevenmaatschappij Belgische PMU SCRL.
65 College, 19 June 2017, Decision ABC-2017-V/M-24, Interim measures against Order of Pharmacists, Paragraph 48. The decision on the merits did not analyse the case as a potential abuse of dominance but rather found an infringement of Article IV.1 of the CEL (prohibition of anticompetitive agreements).
66 In the Cargo handling case, the Auditorate closed an investigation (for lack of evidence) into practices that would have entailed a review of potential bundling practices by Aviapartner and Flightcare on the reserved market for airside freight handling and the downstream non-reserved market for landside freight handling services; see Auditorate, 17 February 2015, Decision BMA-2015-I/O-02-AUD, Cargo handling at Brussels National Airport.
67 Competition Council, 2 April 2009, Decision 2009-V/M-04, Bofar NV, Paragraph 103.
68 Joined Cases C-468 to 478/06, GlaxoSmithKline AEVE  ECR I-7139.
69 Ghent Court of Appeal, 1 October 2014, Ducati v. DD Bikes (Case 2010/AR/3351).
70 Ghent Enterprise Court, 28 October 2020, De Troyer v. Woody (Case A/20/02490).
71 Auditorate, 22 March 2017, Decision BMA-2017-I/O-07-AUD, Algist Bruggemans NV, Paragraphs 191–194.
72 College, 19 June 2017, Decision ABC-2017-V/M-24, Interim measures against Order of Pharmacists, Paragraph 48.
73 College, 28 May 2019, Decision No. ABC-2019-I/O-14, MediCare-Market – Ordre des Pharmaciens, Paragraphs 235–241. The decision did not, however, engage with the potentially abusive nature of the denigrating practices considered in the interim decision. The decision on the merits did not analyse the case as a potential abuse of dominance but instead found an infringement of Article. IV.1 of the CEL (prohibition of anticompetitive agreements).
74 Case T-111/96, ITT Promedia v. Commission , Paragraphs 56, 72 and 73.
75 Council Regulation (EC) No. 139/2004 of 20 January 2004 on the control of concentrations between undertakings, OJ, 29 January 2004, L 24/1.
76 Brussels Court of Appeal, 15 December 2006, Gabriella Rocco & Centro di Medicina Omeopatica Napoletano v. Dano-Invest and others (Case 2006/MR/1).
77 College, 21 November 2016, Decision BMA-2016-V/M-36.
78 ibid., Paragraph 77 et seq.
79 Brussels Court of Appeal, 28 June 2017, Alken-Maes v. AB InBev (Case 2016/MR/2).
80 Auditorate, 26 March 2015, Decision ABC-2015-P/K-09-AUD, Lampiris v. Electrabel, Paragraph 142.
81 Auditorate, 28 September 2010, Decision 2010-P/K-42-AUD, Freedom CVBA v. InBev Belgium NV, Paragraph 80.
82 College, 10 December 2012, Decision 2012-P/K-32, Publimail, Link2Biz International and G3 Worldwide Belgium v. bpost, Paragraphs 253–262.
83 Brussels Court of Appeal, 10 November 2016, bpost v. Spring, LINK2BIZ International, Publimail, in the presence of the BCA (Case 2013/MR/2).
84 Belgian Supreme Court, 22 November 2018, Belgian Competition Authority v. bpost (Case C.17.0126.F/1).
85 ECJ, Case C-117/20, bpost, pending.
86 ECJ, 27 March 2012, Case C-209/10, Post Danmark.
87 Brussels Court of Appeal, 3 November 2005, SABAM v. Productions & Marketing, TBM v. RCB, 2006/4, p. 319.
88 The management of reserve capacities on the Belpex electricity exchange, for the electricity wholesale market.
89 College, 18 July 2014, Decision ABC-2014-I/O-15, Electrabel v. Wholesale Electricity Market. As part of its reasoning, the College also repeated that, as a matter of principle, competition law is applicable to practices otherwise regulated by sector-specific rules.
90 College, 18 July 2014, Decision ABC-2014-I/O-15, Electrabel v. Wholesale Electricity Market, Paragraph 147.
91 Brussels Commercial Court, 12 April 2018, Festival organisers v. SABAM (Case 2018/1712).
92 ibid., Paragraph 20.
93 Brussels Court of Appeal, 14 January 2015, NMBS v. Electrabel (Case 2010/AR/3112), TBM v. RCB, 2016/1, p. 33; and Auditorate, 26 March 2015, Decision ABC-2015-P/K-09-AUD, Lampiris v. Electrabel (Case CONC-P/K-09/0002).
94 Competition Council, Decision 2008-I/O-41-AUD, Electrabel NV.
95 ECJ, 25 November 2020, Case C-372/19, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Weareone.World BVBA and Wecandance NV.
96 Brussels Court of Appeal, 29 May 2012, Standaard Boekhandel, Prodipresse, VFP and Buurtsuper v. AMP.
97 Antwerp Commercial Court, 17 July 2008, Base v. Belgacom (Case A/07/6775).
98 N Petit, 'L'application du droit de la concurrence par les juridictions belges – Une analyse tendancielle de la jurisprudence récente', in JF Bellis (ed.), Concurrence en droit belge et européen (Brussels: Larcier, 2009), pp. 33 and 34.
99 Articles V.3–V.4 of the CEL.
100 Article V.6 of the CEL.
101 In a decision closing an investigation into alleged unfair prices (in light of available resources and priorities), the Auditorate mentioned that the Price Observatory may be better placed to investigate the price evolution identified by the complainant; see Decision No. BMA-2015-P/K-10-AUD of 31 March 2015, [x] v. Omega Pharma (Case MEDE-P/K-02/0073), Paragraph 53.
102 Articles V.3–V.4 of the CEL.
103 See the €4.34 billion fine imposed in Case AT.40099, Google Android (18 July 2018).
104 Competition Council, Decision 2009-P/K-10, BASE v. Belgacom & Belgacom Mobile. The Brussels Court of Appeal partially annulled the decision in an interlocutory judgment of 7 October 2020. It still remains to be seen whether and to what extent the fine amount will be revised.
105 Article IV.84 of the Law of 2 May 2019 amending Book I 'Definitions' and Book XV 'Enforcement', and replacing Book IV 'Competition Law' of the Code of Economic Law (Belgian Official Gazette, 24 May 2019). Fines for infringements having started prior to the entry into force of the Law (on 3 June 2019) are still capped at 10 per cent of the turnover generated on the Belgian market (including the sale of goods for export) in the previous year.
106 The Guidelines are available on the BCA website at: www.abc-bma.be/sites/default/files/content/download/files/20200916_richsnoeren_geldboeten_lignes_directrices_amendes.pdf. This last version was adopted on 3 September 2020 and revises the 2014 version to reflect the Law of 2 May 2019 amending Book I 'Definitions' and Book XV 'Enforcement', and replacing Book IV 'Competition Law' of the Code of Economic Law (Belgian Official Gazette, 24 May 2019).
107 Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Council Regulation (EC) No. 1/2003, OJ, 2006/C 210/02.
108 Article IV.70(2) of the CEL.
109 Article IV.64(1) of the CEL.
110 Article IV.64(3) of the CEL.
111 Article IV.64(6) of the CEL.
112 College, 22 January 2019, Decision BMA-2019-V/M-01.
113 College, 23 January 2020, Decision BMA-2020-VM-04; College, 28 August 2020, Decision BMA-2020-V/M-28.
114 College, 27 July 2015, Decision ABC-2015-V/M-23, Interim measures against FEI, Paragraphs 97–115. The FEI's appeal to suspend the interim measures was dismissed by the Brussels Court of Appeal in a first judgment of 22 October 2015, FEI v. BCA (Case 2015/MR/1), Belgian Official Gazette, 17 November 2015, pp. 69 and 141), and confirmed by the judgment on the merits of 28 April 2016, FEI v. BCA (Case 2015/MR/1), TBH v. RDC, 2016/8, p. 761.
115 College, 24 November 2015, Decision ABC-2015-V/M-68, Interim measures against FEI, pp. 29–31, upheld by the Brussels Court of Appeal, 28 April 2016 (Case 2015/MHR/1).
116 College, 20 December 2017, Decision ABC-2017-V/M-38, Interim measures against FEI, GCL and TTB.
117 College, 13 April 2018, Decision ABC-2018-V/M-11, Demande de mesures provisoires de Madame Lisa Nooren and Henk Nooren Handelsstal, Paragraphs 52–54.
118 Brussels Court of Appeal, 27 June 2018, GCL and TTB v. Belgian Competition Authority (Case 2018/5782), Paragraph 38.
119 College, 5 November 2015, Decision BMA-2015-V/M-65, Interim measures against Telenet (Case MEDE-V/M-15/0024), Paragraphs 72–81, upheld by the Brussels Court of Appeal, 7 September 2016, Telenet v. BMA (Cases 2015/MR/2 and 2016/MR/1).
120 Article IV.42(4) of the CEL.
121 Article IV.42(5) of the CEL.
122 Article IV.45(5) of the CEL.
123 These time limits can be extended if the president of the BCA 'deems it necessary'. The CEL also provides for various deadlines applicable to the Auditorate and the College, but these are considered indicative. For example, the College is supposed to hold an oral hearing, at the latest, two months after the filing by the parties of their written comments on the draft decision, and to issue its decision within one month of the oral hearing (see Articles IV.42(5), IV.45(3),(4) and (6) of the CEL).
124 Article IV.45(1) of the CEL.
125 Article IV.45(2) of the CEL.
126 Article IV.45(5) of the CEL.
127 Article IV.49 of the CEL.
128 The BCA has adopted commitment decisions in only two instances so far: see Competition Council, Decision 2005-I/O-52, NV Distri-One v. BVBA Coca-Cola Enterprises Belgium; and Competition Council Decision 2006-I/O-12, Banksys SA v. FNUCM; UNIZO v. Banksys. Both decisions ended seven-year investigations into alleged abusive conduct.
129 Auditorate, 7 November 2016, Decision ABC-2016-I/O-31-AUD, Immoweb (Case CONC-I/O-15/0002).
130 Articles IV.51–IV.57 of the CEL.
131 See the BCA's Fining Guidelines, Paragraphs 9 and 10.
132 For a later example, see Auditorate, 22 March 2017, Decision BMA-2017-I/O-07-AUD, Algist Bruggemans NV (Case MEDE-I/O-13/0001).
133 Auditorate, 22 September 2015, Decision BMA-2015-P/K-27-AUD; the Auditorate adopted a second decision on the same day, dismissing the complainants' other allegations; see Auditorate, 22 September 2015, Decision BMA-2015-P/K-28-AUD, Stanleybet Belgium NV, Stanley International Betting Ltd, Sagevas SA, World Football Association SPRL and Samenwerkende Nevenmaatschappij Belgische PMU.
134 Article IV.20(2) of the CEL.
135 The applicable procedure has been spelled out in a BCA communication of 27 January 2015.
136 Brussels Court of Appeal, 5 March 2013, Belgacom (Case 2011/MR/3) as upheld by the Belgian Supreme Court, 22 January 2015, Auditorate v. Belgacom-HG (Case C.13.0532.F).
137 The compliance of that provision with the Belgian Constitution was confirmed by the Belgian Constitutional Court, subject to conditions, by a judgment of 10 December 2014 (joined Cases 5733 and 5740).
138 Brussels Court of Appeal, 13 December 2017, Distripaints & Novelta v. Belgian Competition Authority (Case 2013/MR/9), Competitio 2018/1, p. 89.
139 Brussels Court of Appeal, 7 October 2020, Proximus v. BCA (Case 2020/6817); Competition Council, 26 May 2009, Decision 2009-P/K-10, Base v. BMB.
140 Brussels Court of Appeal, 27 June 2018, GCL and TTB v. Belgian Competition Authority (Case 2018/5782).
141 Brussels Court of Appeal, 7 August 2018, GCL and TTB v. Jacques Steenberghen et al (Case 2018/AR/1293).
142 Article IV.13 of the CEL.
143 Further, infringements of Chapter IV of the CEL are considered to fall within the scope of the notion of 'unfair trade practices' pursuant to Article VI.104 of the CEL.
144 Article XVII.10 et seq. of the CEL. That procedure is dealt with according to the rules applicable to interim proceedings but is not subject to the requirement of urgency.
145 Ghent Court of Appeal, 7 March 2016, BIT Marketing v. SEB (Case 2015/AR/1594), TBM/RCB, 2016/4, p. 403; and Antwerp Court of Appeal, 27 October 2016, Bierhalle Demeyer NV v. Duvel Moortgat (Case 2015/AR/2657), TBM v. RCB, 2016/4, p. 442.
146 As mentioned previously, commitment decisions do not involve a formal finding of infringement, which implies that plaintiffs cannot solely rely on such decisions as establishing fault under Article 1382 of the Belgian Civil Code as the basis for a follow-on damages claim before Belgian courts.
147 These principles are rooted in Article 1382 of the Belgian Civil Code. In theory, contractual liability can also be invoked to obtain damages or even the nullity of a contract, depending on the terms of the contract in question and the circumstances of the case.
148 Brussels Court of Appeal, 26 February 2015, Belgacom v. Base & Mobistar (Case 2012/AR/1), TBM v. RCB, 2016/3, 286.
149 Prohibiting 'directly or indirectly imposing unfair purchase or selling prices or other unfair trading conditions'.
150 See, for example, Brussels Court of Appeal, 25 January 2005, Ann Prat Comm, p. 743; and Brussels Commercial Court, 15 November 2006, RG 8069/02.
151 Brussels Commercial Court, 17 June 2010, UGC Belgium v. Kinepolis Group, SA Compagnie de Promotion Liégeoise, SA Compagnie de promotion Charlemagne and SA Wilhelm & Co, TBH v. RDC 2013/1, p. 39.
152 Ghent Commercial Court, 23 March 2017, NV Honda Motor Europe Logistics v. NV Herman Verboven et al (Case A/12/02970), TBM/RCB, 2017/2, p. 162.
153 Belgian Constitutional Court, 10 March 2016, Honda (Case 38/2016), TBH v. RDC, 2016/8, p. 755.
154 Articles XVII.35–XVII.69 of the CEL.
155 BCA, Priority Policy for 2021, 5 March 2021.
156 With the introduction of these rules, Belgium made use for the first time of the flexibility afforded by Article 3(2) of Regulation 1/2003.