On 19 April 2017, the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence) (“BCA”) published its annual report for 2016.
Interim Measures
In 2016, the BCA rejected two requests for interim measures. The first request was filed by football club Royal White Star following the refusal by the Belgian Football Association (“BFA”) to grant the club a licence to play in the highest division of the Belgian football league, during the 2016-2017 season. The BCA considered that there were prima facie insufficient indications that BFA’s refusal constituted an infringement of competition law (See VBB on Belgian Business Law, Volume 2016, No. 7, pp. 4-5, available at www.vbb.com).
The BCA also rejected the request of Brouwerijen Alken-Maes NV (“Alken-Maes”) to suspend the acquisition of Brouwerij Bosteels by Anheuser-Busch InBev NV. Alken-Maes argued before the BCA that even if this transaction was not caught by Belgian merger control rules, it had to be reviewed under the Belgian and European rules prohibiting the abuse of a dominant position. Interestingly, the BCA noted that Belgian competition law does not explicitly provide that antitrust rules do not apply to concentrations. A merger that is not subject to merger control can, however, only be assessed prima facie under the rules prohibiting the abuse of a dominant position if there are possible restrictions of competition that can be distinguished from the mere effect of the concentration. The BCA found that this transaction did not raise such concerns (See VBB on Belgian Business Law, Volume 2016, No. 11, pp. 6-7, available at www.vbb.com).
Competition Decisions
The BCA settled two cases in 2016. The first concerned a cartel in the industrial batteries sector. The BCA imposed fines of EUR 3,857,000 on six firms which had agreed to surcharge customers for the lead contained in motive power batteries from 2004 to 2014 (See VBB on Belgian Business Law, Volume 2016, No. 2, p. 5, available at www.vbb.com).
The second settlement decision was adopted in a case concerning a market sharing agreement between SME’s in the river cruise sector. The BCA imposed a very modest fine of EUR 64,100 on one firm which did not benefit from immunity under the leniency programme (See VBB on Belgian Business Law, Volume 2016, No. 6, p. 8, available at www.vbb.com).
The BCA also decided to close two investigations in 2016. The first investigation focused on the Professional Institute for Real Estate Agents (“PIR”). The BCA concluded that, despite the very limited variation between tariffs applied by real estate agents, nothing suggested that the PIR had imposed minimum scales (See VBB on Belgian Business Law, Volume 2016, No. 7, p. 4, available at www.vbb.com).
The other investigation concerned Immoweb. The BCA had taken issue with a “most favoured nation” clause included in contracts between Immoweb and software developers for real estate agencies. Under these clauses, Immoweb could benefit from any more favourable conditions that the software developers would grant to platforms competing with Immoweb. Immoweb managed to meet the BCA’s concerns by offering to end the most favoured nation clauses, and not to reintroduce any such clauses in its contracts for the next five years.
Merger Control
The President of the BCA, Jacques Steenbergen, considers that the BCA’s “most striking” merger case in 2016 is the acquisition of the Delhaize Group by Ahold. This was conditionally approved by the BCA following the referral of the case by the European Commission (See VBB on Belgian Business Law, Volume 2016, No. 1, p. 5; and Volume 2016, No. 3, p. 3, available at www.vbb.com).
The BCA also conditionally approved the acquisition of two out of the four Utopolis Cinema Complexes by Kinepolis (See, this Newsletter, Volume 2016, No. 3, p. 4). The BCA opened an in-depth investigation as it feared that the acquisition by Kinepolis of its second most important competitor would impede competition in the market for screening movies in cinemas, in addition to the upstream market for the distribution of movies (See VBB on Belgian Business Law, Volume 2015, No. 12, p. 8, available at www.vbb.com).
The BCA further conditionally authorised the acquisition by bpost of AMP and LS Distribution Benelux in the sector for the distribution and retail of magazines and newspapers after bpost presented 10 commitments in order to prevent the new entity from restricting competition between unaddressed and addressed distribution, to guarantee the same level of quality for press distribution services, and to avoid privileged treatment of the new entity’s retail outlets (See VBB on Belgian Business Law, Volume 2016, No. 11, p. 6, available at www.vbb.com ).
In addition, two concentrations were cleared without conditions: the acquisition of Mobile Vikings and the client base of Jim Mobile by Medialaan (See VBB on Belgian Business Law, Volume 2016, No. 1, p. 6, available at www.vbb.com), and the acquisition of Group Cheyns and Cheyns by Cebeo.
Formal Opinions
The BCA issued several opinions in 2016. In an opinion to the Federal Minister of Economy, the BCA made clear that collective labour agreements do not fall within the scope of European and Belgian competition laws. The BCA also indicated in another opinion that setting conditions to benefit from a tax exemption is a measure which falls outside the scope of competition law, especially when it is decided by public authorities on grounds of the public interest. The BCA furthermore declared itself as without competence to determine whether the Walloon draft Decree creating a guarantee fund for rents complies with State aid rules. These rules are exclusively applied by the European Commission.
Finally, the BCA issued an opinion on the draft bill concerning abuse of significant market position (“misbruik van aanmerkelijke marktpositie”/“abus de position de marché significative”). The concept of significant market position contemplated in this draft bill is an open-ended notion meaning that there is a link of economic dependence between buyer and seller (See VBB on Belgian Business Law, Volume 2015, No. 11, p. 7, available at www.vbb.com). According to the BCA, abuses of significant dominant positions would be distinct from the abuses of market position already prohibited under Belgian and European competition laws. However, should a specific provision prohibiting abuses of significant market positions be introduced into Belgian competition law, the BCA fears that the number of complaints which it receives would increase dramatically and this would jeopardise the enforcement of the current competition law provisions.
Advocacy
The BCA adopted several guidelines in 2016:
- New leniency guidelines which replaced the 2007 leniency guidelines and entered into force on 22 March 2016 (See VBB on Belgian Business Law, Volume 2016, No. 2, pp. 5-6, available at www.vbb.com);
- A compliance guide for SME’s (See VBB on Belgian Business Law, Volume 2016, No. 8, pp. 4-5, available at www.vbb.com);
- An information guide on bid rigging and public procurements, which the BCA prepared in 2016 and adopted early 2017 (See VBB on Belgian Business Law, Volume 2017, No. 1, p. 8, available at www.vbb.com ).
In addition, the President of the BCA offered two informal opinions in the insurance and agricultural sectors.
Finally, the BCA assessed the results of its activities using the methodologies developed by the OECD and by the European Commission. The BCA concluded that the positive effects of its activities for Belgian firms and consumers significantly outweighed their cost. Although lower than 2015, the BCA considers its impact on prices ranges from EUR 369.5 million to EUR 394.2 million in 2016 (depending on the methodology used), which the BCA considers to be “excellent”. The President of the BCA also expressed his satisfaction with his ability to hire additional staff in 2016. As a result, no less than 13 new officials will be joining the BCA in 2017.
