The act transposing the EU Damages Directive into Belgian law was recently officially published. Among other things, the implementation of the directive has established a rebuttable presumption that cartels cause harm, which did not previously exist under Belgian law. In addition, the binding effect of the Belgian Competition Authority's decisions before the Belgian courts now has a legal basis.
In a recent settlement decision, the Belgian Competition Authority imposed total fines of €1.8 million on five undertakings involved in a bid-rigging cartel. The decision relates to a public tender launched in 2008 by Infrabel, the Belgian railway infrastructure operator. The tender was for the delivery and onsite installation of electrical circuit equipment and related technical assistance.
A recent Competition Authority decision is another example of its fight against vertical restraints. The Competition Authority fined yeast supplier Algist Bruggeman and its parent companies €5.5 million for resale price maintenance, exclusive customer allocation, long-term non-compete obligations and abusive exclusionary practices in the market for compressed fresh yeast and stabilised liquid fresh yeast sold to artisan and semi-artisan bakers.
In a recent decision, the Competition Authority established the circumstances in which it will review concentrations that remain below the EU and Belgian notification thresholds. The most noteworthy part of this decision is the authority's recognition that, in certain well-defined circumstances, concentrations that fall outside the scope of the Belgian merger control regime may still be subject to review.
The Competition Authority recently closed its investigation into real estate website operator Immoweb's most-favoured nation clauses in its contracts with developers of e-commerce software used by real estate agencies. When informed of the authority's preliminary analysis, Immoweb offered to revoke the existing most-favoured nation clauses in its contracts and refrain from reintroducing them in any future contracts with software developers for five years.
The Competition Authority recently approved the divestment of four cinema complexes as part of a remedy package that it imposed on cinema operator Kinepolis following its merger with cinema chain Utopia. The divestment coincided with the publication of a report into the Belgian cinema market that highlighted ticket price increases and the market's high concentration ratio.
The Brussels Court of Appeal recently annulled a Competition Authority decision which had established the existence of an anti-competitive agreement between three cement groups and their sector associations in the context of a standard-setting procedure. The court decided that the parties had done nothing that went beyond legitimate lobbying and normal participation in the activities of standard-setting organisations.
In a recent decision the Competition Authority held that Nethys, a Belgian utilities and media group, had not complied with certain behavioural merger control remedies that had been imposed on it in 2014, including confidentiality and reporting obligations. The decision confirms that non-compliance with merger control remedies constitutes a serious infringement by definition at least.
The Competition Authority recently adopted a settlement decision concerning a cartel in river cruise services. All parties to the cartel acknowledged their participation and accepted the fines that the Competition Authority imposed. Two parties to the cartel applied for leniency and received full immunity; the three remaining parties received a leniency reduction of 45% and an additional reduction of 10% for settling.
The Competition College recently approved two mergers subject to remedies, both of which concerned highly concentrated local markets. In both cases the Competition College considered that remedies would lessen the mergers' negative impact on competition. However, the cases notably differed with regard to the parties' approach to remedy discussions.
The Competition Authority recently imposed fines of €3.8 million on several producers and distributors of industrial batteries for applying an agreed surcharge for lead to the prices of motive power batteries in Belgium between 2004 and 2014. The authority treated the practice as a single and continuous infringement and established that it was contrary to the Competition Act and the Treaty on the Functioning of the European Union.
The Competition Authority recently unconditionally approved a concentration between Cordeel Group and Imtech Belgium. Interestingly, the Competition Authority fined Cordeel €5,000 for gun jumping. The fine is rather modest, given the fact that an undertaking can be fined up to 10% of its worldwide turnover for gun jumping. In determining the level of the fine, the authority took into account a number of mitigating factors.
The Competition Authority recently intervened against two exclusivity agreements. The first case involved two competing communications network operators and the exclusive rights granted to one operator to broadcast cyclo-cross events. The second case related to an exclusivity clause regarding equestrian events imposed by Fédération Equestre Internationale. The authority imposed interim measures and penalties in both cases.
A seller that failed to provide requested information to the Competition Authority on time in a merger control investigation has been fined €50,000 for obstruction. Beyond the particulars of the case, the decision provides more general guidance on the different types of procedural infringement that can result in fines under the Competition Act and the calculation of the fine.
The Competition Authority recently established that the National Lottery abused its dominant position by launching a sports betting product and imposed a fine of almost €1.2 million. The case is the first settlement decision in an abuse of dominance case in Belgium and highlights the risks for a supplier seeking to obtain commercially sensitive data from its distributors.
The Competition Authority recently conditionally approved De Persgroep's acquisition of a number of popular Belgian Dutch-language magazines. This is another complex merger control case handled by the Competition Authority in the context of a Phase 1 decision. The authority imposed remedies, but they are relatively light and will apply only for a short period.
The Competition Authority recently adopted a settlement decision and fined 18 retailers and suppliers €174 million. The retailers and suppliers had engaged in a hub and spoke cartel between 2002 and 2007, resulting in coordinated end-consumer price increases. The cartel involved Belgium's largest retail chains and most important suppliers of pharmacy, perfumery and hygiene products.
The Brussels Commercial Court has dismissed a claim for damages by the Belgian and Flemish state authorities against four members of a Belgian elevator cartel. The claimants alleged that the cartel had overcharged them by 12.3%, resulting in damages of almost €17 million. However, the Brussels Commercial Court ruled that the claimants had failed to provide sufficient proof of damages.
The Brussels Court of Appeal recently declared the dawn raid procedure of the Competition Authority, as set out in the 1999 version of the Competition Act, to be illegal. The judgment is particularly relevant to cases which are still pending and where dawn raid orders were issued under previous versions of the Competition Act.
It has long been unclear whether and at what point undertakings under investigation may appeal against the access to documents or data that the Belgian Competition Authority (BCA) gains in the context of a dawn raid. A recent Constitutional Court decision has finally settled this issue, validating the appeal procedure against BCA investigative measures under the revised Competition Act.