On 22 June 2018, the Belgian Supreme Court confirmed an earlier judgment of the Brussels Court of Appeal annulling a decision of the Belgian Competition Authority (“BCA”) that imposed a fine on a group of cement companies for allegedly anti-competitive joint lobbying efforts vis-à-vis the Belgian public authorities.
In its decision of 30 August 2013, the BCA found that the joint lobbying efforts of the cement companies CCB, CRB and Holcim, together with the Federation for the Belgian Cement Industry and the National Centre for Scientific and Technical Research for the Cement Industry, which were undertaken vis-à-vis the Belgian regulatory authorities to delay the approval process for ground granulated blast furnace slag (a substitute for cement in ready-mix concrete), constituted a concerted practice restricting competition by object. The BCA imposed a fine of €14.7 million in respect of this infringement.
In June 2016, the Brussels Court of Appeal annulled the BCA’s decision (see VBB on Belgian Business Law, Volume 2016, No. 8, available at www.vbb.com). In its judgment, the Court of Appeal considered that lobbying is an activity that seeks to influence governmental policy-making and decisional processes, which are activities outside of the market. In addition, the Court held that the lobbying efforts in question were not excessive, taking into account the fact that the defendants were invited to the approval process by the public authorities, that their presence was appropriate in light of their expertise, that they did not hold power in the relevant decision-making bodies and that the lobbying took place in an open, objective, transparent and non-discriminatory public consultation framework. The Court concluded that such conduct was not incompatible with competition law, the application of which presupposes conduct on the market.
The BCA challenged the Court of Appeal’s judgment before the Supreme Court, which in its recent ruling affirmed the Court of Appeal’s reasoning, finding that it had not made any error of law in holding that joint lobbying activities do not fall within the ambit of the competition laws.
By Martin Favart and Valérie Lefever
