New vaccines, quick and trustworthy diagnostic tests and effective medicines are key to tackling the COVID-19 pandemic. The development of these products depends on pharmaceutical companies, R&D companies, research institutes and universities. However, one question remains: what are the competition rules regarding COVID-19-related R&D?
The new Competition Act was recently adopted, which will be included in the new Code of Economic Law. The new act does not affect the substantive law on anti-competitive agreements, abuse of dominant position and merger control; rather, it completely restructures the Competition Authority and introduces a number of important procedural reforms with the aim of increasing the authority's efficiency.
In a long-awaited decision, the Brussels Court of Appeal has held that advice drafted by in-house legal counsel is to be considered as covered by legal professional privilege when facing an investigation under the Competition Act. The decision allows companies to oppose the seizure of documents drafted by their in-house counsel during dawn raids by the Competition Authority; however, certain restrictions apply.
The president of the Competition Council has ordered Port Real Estate, a warehouse operator in the port of Antwerp, to maintain minimum load-out rates for robusta coffee traded on the NYSE Liffe Exchange in London. The interim order follows a complaint lodged by a UK-based trader in agricultural goods, on the basis of an alleged abuse of dominant position by Port Real Estate.
The Competition Council has ruled that the adoption of a directive by the National Chamber of Judicial Officers - on the fees applicable for so-called 'amicable' (ie, pre-judicial) collection - infringed the Competition Act. Among other things, the council noted that the fact that such officers exercise state authority in some tasks does not preclude the application of competition rules to extra-judicial tasks.
New fining guidelines which were recently adopted by the Competition Council aim to improve transparency for undertakings and associations of undertakings under investigation. However, the council clearly retains significant discretion when determining the size of a fine. Among other things, the guidelines leave open the issue of taking compliance programmes into account as a mitigating circumstance.
The Supreme Court has issued a succinct judgment on the scope of the Court of Appeal's powers to overturn Competition Council decisions and the nature of proceedings before the council. This is the latest decision in a case that began in 1995 with complaints filed by 12 independent motorcycle distributors in Belgium against five official importers of motorcycles, including Honda Belgium.
The Competition Council has clarified the application of the five-year limitation period under the Competition Act. In annulling a decision to dismiss a complaint regarding alleged abuse of dominant position, it held that the five-year period does not begin until a continuous infringement has ended.
The Competition Act allows the College of Competition Law Prosecutors to dismiss cases on the basis of priorities and resources. However, the latest development in InBev - on alleged abuse of dominant position in the brewing and beer sales market - demonstrates that if the prosecutors dismiss a case on the basis of a substantive assessment, they must provide full and adequate grounds for their decision.
The president of the Competition Council has approved a request for preliminary measures from a diamond merchant against De Beers, the world's leading diamond mining and trading company. De Beers was ordered to continue a contractual relationship with the merchant until the outcome of proceedings on the merits which have been pending at national and EU level for many years.
The College of Competition Law Prosecutors has reported to the Competition Council on alleged anti-competitive practices in the market for the supply and sale of flour in Belgium. Following the Dutch regulator's decision to impose fines of over €81 million for anti-competitive agreements in the same industry, will leading Belgian producers also be put through the mill?
The College of Competition Law Prosecutors has dismissed a complaint filed against brewer InBev Belgium NV by Freedom CVBA, a purchasing association made up of several beverage wholesalers. Freedom had claimed that InBev was abusing its dominant position in the Belgian brewing and beer sales market by applying different commercial conditions to on-trade and off-trade customers.
The Competition Council has ordered television provider Telenet to continue to make its pay-to-view channel Prime available to other platforms while it holds exclusive rights to live Jupiler Pro League football matches. The council remains concerned about possible exclusionary effects if Telenet acquires all of the live broadcasting rights, cautioning the league about the inherent anti-competitive risks of collective exclusive reselling.
The Professional Institute of Estate Agents has been found guilty of having infringed EU and Belgian competition law between 1996 and 2004 by adopting and publishing recommended minimum tariffs. The Competition Council held that less restrictive methods could have been used to provide guidance to consumers and real estate agents.
The College of Competition Prosecutors has reported to the Competition Council on the existence of agreements or concerted practices between laboratories that carry out bovine spongiform encephalopathy tests in Belgium. The report suggests that several slaughterhouses and a government agency - the Federal Agency for the Safety of the Food Chain - were also involved.
The Competition Council has fined four Belgian steel plate radiator manufacturers - Masco, Quinn, Caradon and Radson (now called Rettig) - for participating in a cartel in the steel plate radiator market in Belgium. The council decided to impose a total fine of over €3.5 million on the cartel members; however, as the first whistleblower, Masco was given full immunity.
The College of Competition Prosecutors has rejected a complaint by telecommunications company Base against incumbent operator Belgacom for alleged abuse of dominant position. The decision follows proceedings before the Competition Authority regarding Belgacom's abuse of dominant position, which ended in Belgacom's subsidiary Proximus receiving the highest fine ever imposed by the Competition Council.
In two recently published rulings the General Assembly of the Competition Council considered a challenge to two councillors that arose from a claim of abuse of dominant market position. Telecommunications operator KPN Belgium argued that one councillor had opined on the case when ruling on a request for preliminary measures, while another had previously worked for one of the companies involved.
An investigation that began two years ago in Germany, where the competition authorities examined the activities of Ferrero, Kraft, Nestlé and Mars, has led to investigations by Belgium's Competition Authority in the chocolate and confectionery sector. The Competition Council has now received a report into alleged price fixing between Ferrero and three Belgian supermarket chains.
The Competition Council has issued the latest in a series of decisions involving Kinepolis, Belgium's leading cinema chain. Its summary of the long-running dispute demonstrates the council's decisional workings, illustrates its discretion to give a third party partial access to a case file and goes to the heart of issues that are still being considered in the case.
The largest investigation team ever deployed by the Belgian competition regulator has carried out dawn raids on the head offices of Electrabel and SPE, which together account for around 80% of the electricity produced in Belgium. The raids are only the start of a thorough investigation of the wholesale electricity market, which has not come too soon for some downstream competitors.
The Brussels Court of Appeal has ruled that it is competent to review an arbitral decision if the decision threatens public order - for example, on a question relating to Articles 81 and 82 of the EC Treaty. However, it cannot review a decision by an arbitration panel which relates merely to an award of damages between parties to an agreement that has been declared void for infringing EU competition law.
The Supreme Court has ruled that the Belgian courts can find - on the basis of Article 81(2) of the EC Treaty - that clauses imposing an exclusive purchase obligation of more than five years are void without having to invoke an individual exemption under Article 81(3) on their own initiative. The decision calls into question the public policy nature of Article 81(3).
The Competition Council found that a joint venture by two firms in the highly concentrated tourism coach transport market did not restrict competition. This case is significant because the public prosecutor and the council took opposing views of the merits of the case. It is also the first time that the prosecutor has taken ex officio action against an agreement notified for clearance to the Competition Authority.
The Competition Council has fined mobile operator Proximus €66.3 million for abuse of a dominant position. The fine amounted to 15% of the sales made by Proximus in the relevant market sector during 2005 (€340 million), increased by 30% because the behaviour was proven to have continued over two years.
Among the largely procedural amendments to the Competition Act, the clarification of the prescription rules and the option of dismissing cases on policy grounds have caught the eye of competition lawyers. Previously, every complaint or request had to be investigated; the Competition Council could halt only the investigations that it launched on its own initiative. The change should cut the number of pending but inactive cases.
The competition authorities recently addressed refusal to supply by dominant pharmaceutical companies when dismissing an appeal by Bofar, an exporter of pharmaceutical products. As Bofar is not entitled to supply in Belgium, the Competition Council ruled that pharmaceutical companies can protect their commercial interests without abusing their dominant position.
The College of Prosecutors has recently ruled on requests from Belgian Posters and Clear Channel for interim measures to prevent the Brussels region from granting a public tender contract to JC Decaux. The two claimants maintained that JC Decaux had abused its dominant position for urban advertisement furniture, thereby obtaining a dominant position in the market of bicycles for public use.
The Brussels Court of Appeal recently ruled on a private sale held by the INNO department stores in the black-out period which precedes the two annual sales periods, during which no price reductions can be announced or suggested. It held that these black-out periods fall outside the scope of the EU Unfair Commercial Practices Directive.
The Belgian Competition Authority's (BCA's) latest note reiterates that competition law rules concerning merger control fully apply to the creation of local hospital networks as required under the Act of 28 February 2019. Although hospitals seem largely unaware of the obligations under the merger control rules attached to such forms of cooperation, they should consider that the BCA is paying more attention to the sector and that significant penalties may be incurred for non-compliance.
The Brussels Court of Appeal has ruled on action by a number of slaughterhouses and livestock exporters to claim reimbursement from a municipality and the Belgian state for para-fiscal charges which were paid as part of a state aid package that was later annulled by the European Commission. The Supreme Court has also considered questions arising from the scheme.