On 30 August 2013, the Belgian Competition Authorities imposed fines for approximately EUR 14.5 million in total on cement producers CBR, CCB and Holcim, as well as smaller fines of EUR 100,000 each on the trade association for Belgian cement producers (FEBELCEM) and the national centre for research for the cement industry (CRIC). The competition authority found that the entities concerned had engaged in a concerted practice with a view to delaying the adoption of a number of regulatory instruments permitting the use of LMA (laitier moulu agrée) as a substitute for CEM III cement in the production of ready-mix concrete. In particular, it found that this concerted practice was intended to prevent the Dutch LMA producer Orcem entering the Belgian market.
The Brussels Court of Appeal's judgment first dismissed the procedural objections raised against the decision of the Belgian Competition Council. Despite the fact the procedure had been before the Council for a lengthy period of 7 years and 9 months, the Court noted that none of the claimants had provided specific arguments as to why this delay compromised their rights of defence (e.g. by identifying names of former staff members that had left the company and could no longer be contacted to give evidence). The Court also rejected the suggestion that the mere fact that the decision was not read out in a public hearing amounted to a breach of Article 149 of the Belgian Constitution and/or Article 6(1) European Convention on Human Rights. A challenge to the impartiality of the Competition Council was similarly dismissed.
However, on the merits of the case, the Court of Appeal overruled the Competition Council's decision that the concerted practice amounted to a restriction of competition by object. According to the Court, the Council failed to properly take into account the lobbying context in which the conversation took place. Referring to a previous judgment of the General Court of the EU, ECM Developments, the Court of Appeal stressed in particular that none of the relevant decision-making bodies were controlled by the cement producers. Furthermore, the participation of the cement producers in the consultative and decision-making process had taken place in an open, objective, transparent and non-discriminatory context. The Court of Appeal held that because the undertakings had not influenced the procedures to the extent of controlling and undermining them, they had not gone beyond permissible lobbying. Accordingly, the contested conduct had not taken place ‘on’ the market and could not give rise to a breach of competition law. In light hereof, the Court decided to annul the Council's decision, including the fines imposed therein.
