The Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence) (“BCA”) has published its policy priorities for 2017.
As in its previous policy notes (See e.g. VBB on Belgian Business Law, Volume 2016, No. 4, p. 4, available at www.vbb.com), the BCA first highlights the three main areas where the BCA contributes to the improvement of the functioning of the markets, namely (i) the launching of investigations and formal proceedings against infringements of Belgian and/ or European competition laws; (ii) merger control; and (iii) the pursuit of an informal competition policy through a broad range of actions.
The BCA’s policy note primarily concerns the first area. Consistent with previous years, the BCA indicates that it takes into account four factors to assess the importance of a case:
- Impact: The BCA assesses the damage directly caused by the alleged infringement in terms of prices, product quality and consumer welfare. Indirect forms of impact such as deterrence, are also considered.
- Strategic significance: An investigation carries strategic relevance where its outcome may clarify the interpretation of the law, or set precedent.
- Risks: The BCA is unwilling to invest resources in the conduct of an investigation which is not likely to generate results.
- Resources: Availability of resources necessary for the conduct of investigations are also taken into consideration.
Interestingly, the BCA also lists the sectors which it considers to constitute an enforcement priority:
- Since the BCA started publishing its enforcement priorities, liberalised sectors and network industries have always been singled out as important. Contrary to last year, the BCA does not mention the postal sector but instead focuses on telecommunications. It makes particular references to “triple play” and “quadruple play” offers which, according to the BCA, generate higher margins and increase consumer loyalty.
- The retail sector and its dealings with suppliers has also been an area of focus for several years. The BCA stresses the importance of this sector for the economy, and notes that it constitutes an access gate to a large number of products. The BCA considers that agreements between suppliers and retailers can be anticompetitive when they limit the retailers’ freedom to set their own prices or to sell online.
- In 2017, the BCA intends to concentrate once again on the services industry. The BCA will maintain its dual approach: first, the BCA will ensure that trade associations comply with competition law and second, it will advocate for the removal of regulatory barriers to enter these markets.
- Similar to its 2016 policy note, the BCA considers public procurement to be an enforcement priority. This is not surprising, given that the BCA has just published an information leaflet on bid rigging (See VBB on Belgian Business Law, Volume 2017, No. 1, p. 8, available at www.vbb.com). The BCA also very recently adopted a settlement decision imposing a total fine of EUR 1,779,000 on five firms that engaged in bid-rigging (this decision will be further discussed in the May edition of this Newsletter).
- Compared to its 2016 policy note, the “digital economy and media” industries disappeared from the list. These were replaced by the pharmaceutical sector, which as the BCA mentions, is also a priority sector in other EU Member States. The BCA makes clear that it will “pay attention to every level of the value chain” from the prices fixed by pharmaceutical firms, over competition between wholesalers-distributors to competitive dynamics and innovation at the pharmacy level.
- The BCA adds this year a sixth sector to the list (which only contained five in 2016): the logistics sector has now become a priority. According to the BCA, the logistics sector includes a high number of jobs and brings added value due to Belgium’s geographical position and high-density road, railway and river networks.
As for the type of infringements prioritised, the BCA will seek a balance between obvious hardcore infringements and more complex or innovative cases. This is a new addition: previously, the BCA’s lack of human resources had forced it to focus on anticompetitive agreements that have a significant impact on the market.
