On 22 May 2015, the Belgian Competition Authority (“BCA”) published its first annual report covering a full year of the new Competition Authority’s activity since its reform in September 2013.
Anti-competitive practices
In 2014, the Competition College of the BCA did not adopt any substantive decisions in any cases concerning anti-competitive agreements or concerted practices. However, it adopted two decisions on interim measures in the case involving car dealer Ets. Claude Fetz and car manufacturer BMW Belux. In regards to appeals, the Competition College confirmed the decision of the Competition College Prosecutors to reject Clear Channel Belgium’s complaint against JCDecaux Street Furniture Belgium concerning the tendering process for the public bicycles rental network in Brussels (Villo!).
With respect to unilateral practices, the Competition College imposed a fine of € 2 million on Belgian incumbent energy supplier Electrabel for an abuse of its dominant position: the BCA found that Electrabel abusively withdrew capacity from the electricity market and thus infringed Article 3 of the former Belgian Competition Law (now Article IV.2 of the Belgian Code of Economic Law) and Article 102 of TFEU.
It should also be highlighted that the BCA adopted new fining guidelines in 2014, enabling the BCA to impose higher fines for anti-competitive practices following the example set by the 2006 guidelines of the European Commission. The BCA also published its enforcement priorities for 2015, giving an indication of the sectors and practices that are more likely to be investigated and possibly prosecuted in the future.
Merger control
In 2014, the BCA dealt with 16 merger cases. Among those, two cases did not follow the simplified procedure. One of these two cases was Tecteo Services Group/Editions de l’Avenir and Corelio Connect Sud, where the Competition College conditionally approved Tecteo’s acquisition of Belgian local newspaper L’Avenir. The other case concerned the acquisition by Zuid Nederlandse Uitgeverij and its subsidiary Standaard Boekhandel of retail stationary chain Club. This acquisition was cleared by the Competition College without conditions.
Activities
Although the College of Competition Prosecutors closed three cases in 2014 (Spira/De Beers, Handling Co/Majors and a case concerning green certificates for the supply of electricity), the BCA opened 13 new investigation files, conducted several dawn raids and received an increasing number of leniency applications.
On a broader scale, the BCA sent two amicus curiae letters. One of the letters was addressed to the Antwerp Court of Appeal in a case concerning an exclusivity clause, and the other was sent to the US Court of Appeal of the Seventh Circuit in Chicago regarding the extraterritorial application of US antitrust law (in the Motorola case).
In addition, the BCA issued an opinion on a market analysis carried out by the Belgian telecoms regulator (BIPT/IBPT). The BCA concluded cooperation agreements with the BIPT/IBPT and with the energy regulator CREG.
Challenges
Finally, the BCA highlights in its annual report two main difficulties that it faced during the past year:
- The first difficulty is linked to the introduction of Article IV.79 in the Belgian Code of Economic Law, which enables undertakings to appeal decisions to carry out dawn raids made by the former Competition Council under the former Belgian Competition Law, even after the adoption of a statement of objections. According to the BCA, the entry into force of this provision led to appeals in 3 cases, which considerably delayed the BCA’s work.
- The second difficulty is linked to the BCA itself, which suffers from a lack of personnel. The legal framework necessary to recruit or promote the personnel of the BCA has not yet been adopted, and, according to the President of the BCA, Dr. Jacques Steenberghen, it “takes time, creates anxiety and keeps a lot of people busy whose attention is already dedicated to other essential tasks”.
