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08 September 2011
On April 21 2011 the Competition Council annulled a decision of the competition prosecutor in which a complaint was dismissed on the grounds that the statute of limitations had expired. The complaint had been brought against Belgian pharmaceutical company Omega Pharma for abuse of the dominant position that had allegedly been created by its acquisition of certain competitors. Among other things, it was alleged that Omega Pharma had unfairly increased its prices for raw materials and packaging used by pharmaceutical manufacturers, hospital pharmacies and high-street pharmacies.
The Competition Act states that events which occurred more than five years before the filing date of a complaint (or the start of an ex officio investigation) cannot be investigated. The five-year limitation period is interrupted and renewed by any decision or investigatory action. The complaint against Omega Pharma was filed on November 20 2002 and the last investigatory measure had taken place on July 13 2004. The prosecutor handling the case ruled that the five-year statutory limit had expired on July 13 2009 and therefore dismissed the complaint in December 2010. The initial complainant appealed, claiming that Omega Pharma had continued its abusive practices and that therefore the case could not be time barred.
Article 88(2) of the act provides that a decision must be taken within five years of the complaint being received or the last investigatory measure. It makes no exception for continuous infringements. However, Article 88(3) states that the period in which fines can be imposed for infringements of the act does not begin until the infringement ends. A strict interpretation of these two paragraphs would lead to a contradictory conclusion: after the five-year period (commencing with filing of the complaint or the last investigatory measure), no decision can be taken regarding continuous infringements, but an infringer may still be fined. Moreover, Article 88(1) of the act mentions that the period in which actions dating back more than five years can be investigated does not start until the infringement has ended. Consequently, the council ruled that for continuous infringements, the five-year period cited in Article 88(2) does not begin until the continuous infringement has ended. Therefore, the prosecutor should not have dismissed the case in 2010, as the infringement was still ongoing. As a result, the case was remitted to the prosecutor for further investigation and a new report on the merits of the complaint.
For further information on this topic please contact Carmen Verdonck or Louise Depuydt at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email (email@example.com or firstname.lastname@example.org).
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