As in many other European countries, the COVID-19 pandemic forced the Pro League – the Belgian professional football league – to set up an alternative arrangement for the end of the disrupted 2019-2020 football season. Subsequently, football clubs have challenged such decisions to prevent relegation or promotion. In this context, the Belgian Competition Authority and the civil courts recently had to rule on different interim measure requests in the football sector relating to competition law.
Against the backdrop of the legal dispute between festival and concert organisers versus SABAM (the Belgian music authors' collecting society) regarding SABAM's tariffs for festivals and concerts being taken to the European level, in two parallel legal proceedings, one pending before the Brussels Court of Appeal and the other before the Antwerp Enterprise Court, the European Commission and the Court of Justice of the European Union have been asked to shine a light on SABAM's tariffs.
The prohibition on the abuse of economic dependence to protect undertakings that are economically dependent on their suppliers or buyers recently entered into force. Thus, Belgium has followed the example of other EU member states by making use of the option offered by Article 3(2) of the Treaty on the Functioning of the European Union to prohibit and penalise unilateral conduct by companies even in the absence of a dominant position.
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 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.