By judgment of 13 February 2013 the Brussels’ Court of Appeal ("CoA") annulled the decision of the Competition Council (Raad voor de Mededinging, "CC") of 25 January 2008. The judgment of the CoA has not yet been published.
The CC ruled in this decision that VEBIC, i.e. the association of Flemish Bakeries, infringed Article 2 APEC (Belgian counterpart of Article 101 TFEU) by publishing and disseminating amongst its members a bread price index and cost calculation scheme, after the bread price was liberalized. According to the CC, the index and calculation scheme were decisions of an association of undertakings with the purpose to influence and harmonize the price policy of bakeries with the ultimate goal to raise prices. These decisions are anti-competitive and violate Article 2 APEC.
The CoA annulled this decision on purely procedural grounds and did thus not pronounce itself on the substance of the case.
The CoA ruled that it could not verify whether the chamber of the CC which decided on the matter was composed in accordance with Article 19 APEC. That article provides that the General Assembly of the Council shall determine on an annual basis the composition of the chambers and choose the presidents from among their members. This provision serves to protect the impartial allocation of cases. Because the decisions of the General Assembly are not published, and the decision of the CC itself does not explain how the chamber was composed, the CoA held that it could not verify if the decision was taken by a chamber composed according to Article 19 APEC. Therefore the decision was annulled.
After annulling the decision, the CoA, making use of its full jurisdictional power, substituted the CC’s decision by its own judgment. The CoA examined whether the decision to start an investigation into the practices of VEBIC, was lawful. The investigation started after the Minister of Economic Affairs addressed a letter to the President of the CC requesting that an investigation concerning the bread price should be conducted. This letter, together with some other documents (two complaints from private persons concerning alleged price agreements between bakeries, and possibly a written finding of a policeman), was later sent to the competition prosecutor. Article 23 APEC 1999 (the law applicable at the time), provides that an investigation can be started after a request of the Minister or the CC if there are serious indications of an infringement. The CoA concluded that the unmotivated request of the Minister and the few additional documents cannot constitute a serious indication of an infringement. Therefore, the CoA ruled that the decision to start the investigation was unlawful. As a consequence, the investigation and the motivated report of the Competition Prosecutor which is based on that investigation are also unlawful. Consequently, there are no more grounds to condemn VEBIC for violation of Article 2 APEC.
