Abstract
This chapter aims to provide insight into the assessment by the Belgian Competition Authority [The Belgian national competition authority is the Autorité belge de la Concurrence (in French) and Belgische Mededingingsautoriteit (in Dutch), referred to as the “BCA”.] and the courts of abuse of a dominant position in Belgium with a view to enabling the international rapporteur to answer two questions, namely (1) whether there is consistency between the recent approaches by the different jurisdictions to the notion of abuse and (2) whether there are excessive restrictions on legal rights and business opportunities.
In assessing the existence of abuse of a dominant position, the BCA and Belgian courts rely on Article IV.2 of the Code on Economic Law (CEL), or its legacy legislation, and the decisional practice of European institutions such as the European Commission and the European Court of Justice (“European Institutions”). Therefore, the approach and standard of harm relied on in the BCA’s decisional practice and the case law interpreting the concept of “abuse”, the distinction between price-based and non-price-based abuse and the distinction between exclusionary and exploitative abuses are all in line with European competition law. However, stakeholders usually lack guidance regarding the application of the prohibition against unilateral conduct due to the limited number of cases involving Articles IV.2 CEL and/or 102 TFEU.
Regarding the question of whether there are excessive restrictions on legal rights and business opportunities, this chapter highlights that, in the recent Electrabel case, the BCA stated that it is important in the framework of its enforcement of the prohibition against forms of anticompetitive unilateral conduct to ensure the maintenance of a favourable environment for sustainable investment. This allows for the conclusion that competition law imposes restrictions on business by prohibiting abuse of a dominant position in as much as that is necessary to prevent the exclusion of competitors or exploitation of consumers while aiming to foster a favourable environment for business.
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Notes
- 1.
Act against an abuse of economic power of 27 May 1960, published in the Belgian Official Gazette on 22 June 1960, p. 4674.
- 2.
R. Dehem, La protection contre l’abus de puissance économique, Bulletin de l'Institut de Recherches Économiques et Sociales, 26e Année, No. 6 (September 1960), pp. 497-522.
- 3.
Act on the Protection of Economic Competition of 5 August 1991, published in the Belgian Official Gazette on 11 October 1991, p. 22493.
- 4.
For an overview of the changes made by the act to the institutional framework and early cases involving application of the prohibition of abuse of a dominant position, see the first annual report of the BCA, available at http://statbel.fgov.be/fr/binaries/report_competition_fr_001_tcm326-31172.pdf. Accessed on 10 April 2014.
- 5.
See the 2000 Annual report of the Belgian Competition Authority, p. 9, available at http://economie.fgov.be/fr/binaries/report_competition_2000_fr_tcm326-36145.pdf. Accessed on 10 April 2015.
- 6.
Act on the Protection of Economic Competition (APEC), consolidated on 15 September 2006, published in the Belgian Official Gazette on 29 September 2006, p. 50613, and amended by the Act of 6 May 2009, published in the Belgian Official Gazette on 19 May 2009, p. 37860.
- 7.
The code was enacted one book after another and each came into force on a different date. Most provisions of the book dedicated to competition law came in on 6 September 2013 (Competition Act of 3 April 2013, inserting Books IV and V, published in the Belgian Official Gazette on 26 April 2013, p. 25216, and Act of 3 April 2013, published in the Belgian Official Gazette on 26 April 2013, p. 25248).
- 8.
This is an excerpt from an unofficial English translation of the official Dutch and French versions of the act provided by the BCA for information purposes only. Only the texts published in the Belgian Official Gazette are binding. The full English version of the act is available at http://economie.fgov.be/en/binaries/Book_IV_of_the_Code_of_Economic_Law-The_Act_english_translation_tcm327-241692.pdf. Accessed 15 April 2015.
- 9.
Communication from the Commission—Guidance on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, C-45, 24 February 2009, pp. 7-20.
- 10.
Brussels Court of Appeal, 9th Division, Belgacom v. Base and Mobistar, 26 February 2015, para. 45, referring to the ECJ, case C-27/76, United Brands, 1978 ECR 207, point 65. The electronic version of the judgment is available on the BCA’s website at http://economie.fgov.be/fr/binaries/20150226_CAB_2012AR1_Belgacom_v_Base_Mobistar_tcm326-264381.pdf. Accessed on 15 April 2015.
- 11.
See D. Grisay, Introduction au droit belge de la concurrence, Brussels, Larcier, 2009, p. 158. See also Dirk Vandermeersch, De Medingingswet, Mechelen, Kluwer, 2007, p. 208.
- 12.
See CJEU, C-95/04, British Airways v. Commission, ECR [2007 I-2331], paras. 57-58 and cited case law.
- 13.
Cass. 18 February 1965, Pas., 1965, I, p. 621. See J. Ligot, F. Vanbossele and Olivia Battard, Les pratiques loyales, Brussels, Larcier, 2012, pp. 186-192 and cited case law.
- 14.
See Dirk Vandermeersch, De Medingingswet, Mechelen, Kluwer, 2007, p. 507.
- 15.
Cass., 7 January 2000, Multipharma Groep v. Louis Widmer, RCJB 2001, p. 255, commented on by J. Stuyck; RDC, 2000, p. 369, commented on by D. Vandermeersch.
- 16.
See Ghent Court of Appeal, 1 March 2010 (NV Cinecom v. NV Independent Film Distributie), TBM/RCB, 2010.
- 17.
See R. O’Donoghue and J. Padilla, The Law and Economics of Article 102 TFEU, London, Hart Publishing, 2013, pp. 190 et seq.
- 18.
Idem, pp. 201 et seq.
- 19.
Case CONC-I/O-09-0015, wholesale electricity markets, 18 July 2014, para 135, available at http://economie.fgov.be/fr/binaries/ABC-2014-IO-15_Electrabel%20PUB_tcm326-253790.pdf. Accessed on 15 April 2015, para. 162.
- 20.
Idem. Accessed on 15 April 2015, paras. 96-98.
- 21.
Belgacom v. Base and Mobistar, paras. 196 and 145. Accessed on 15 April 2015.
- 22.
Cases CONC-P/K-05/0067, CONC-P/K-09/0017 and CONC-P/K-10/0016, decision no. 2012-P/K-32, bpost, 10 December 2012, available at http://economie.fgov.be/en/binaries/32_2012PK32_VERSION_PUBLIQUE_F_tcm327-210746.pdf. Accessed on 15 April 2015.
- 23.
Case MEDE-P/K-09/0019, Diamanthandel A. Spira BVBA v. De Beers UK Limited, 15 October 2014, available at http://economie.fgov.be/fr/binaries/BMA-2014-PK-22-AUD_PUB_SITE_tcm326-259076.pdf. Accessed on 15 April 2015.
- 24.
Belgacom v. Base and Mobistar. Accessed on 15 April 2015.
- 25.
Brussels Court of Appeal, Magyar Telekom v. Kapitol, 8 March 2012, available on www.tbm-rcb.be. Accessed on 15 April 2015.
- 26.
Council Regulation (EC) No.1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ L-1, 4 January2003, pp. 1-25.
- 27.
See also in this respect Case C-343/12, Euronics Belgium CVBA v. Kamera Express BV and Kamera Express Belgium BVBA, ECR [2013], p. 0, where the Court of Justice ruled that Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market must be interpreted as precluding a national provision, such as that at issue in the main proceedings, that provides for a general prohibition against offering for sale or selling at a loss in so far as that provision pursues objectives relating to consumer protection.
- 28.
See question 4, above.
- 29.
Decisions regarding the application of Article IV.2 CEL, or the former Article 3 of the 2006 Competition Act, concerning interim measures, closure of investigations for lack of interest, for reasons linked to internal priorities of the BCA or related to the statute of limitations are not included in the count due to the lack of relevance to the questions analysed in this chapter.
- 30.
The data set is constituted by the information published on the website of the BCA at http://economie.fgov.be/fr/entreprises/concurrence/decisions/autorite/decisions_pratiques_restrictives_concurrence (accessed on 15 April 2015) and in the BCA’s annual reports, available at http://economie.fgov.be/fr/entreprises/concurrence/publications/rapports_annuels (accessed on 15 April 2015).
- 31.
For 2015, the count is based on decisions by the BCA in the period 1 January 2015 to 26 April 2015.
- 32.
The analysis is based on information regarding judicial case law published on the website of the BCA at http://economie.fgov.be/fr/entreprises/concurrence/jurisprudence/Decisions_juridictions_belges (accessed on 15 April 2015) and on information available via Juridat (http://jure.juridat.just.fgov.be) and Jura (www.jura.be). Under Article IV.78 CEL, courts are especially supposed to send the BCA copies of judgments involving assessment of conduct under the competition rules. There has been significant improvement in this practice since modernisation of the BCA in 2013.
- 33.
During the 2013 modernisation process, the possibility of creating and dedicating a special administrative “Market Court” (“Cour du Marché”—“Markthof”) was discussed but later abandoned, mainly due to potential breaches of the Belgian Constitution that creating such a court would entail. Therefore, review of the BCA’s decisions remains within the jurisdiction of Brussels Court of Appeal. In this respect, see the Opinion of the Belgian Competition Commission, 14 September 2009, CCE 2012-0963, available online at http://www.ccecrb.fgov.be/txt/fr/doc12-963.pdf. Accessed on 13 April 2015.
- 34.
Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services, OJ C-165, 11 July 2002, pp. 6-31.
- 35.
Idem, para. 24.
- 36.
Idem, para 30.
- 37.
Communication from the Commission—Guidance on its enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, OJ C-45, 24 February 2009, pp. 7-20.
- 38.
See the document containing the policy priorities of the BCA for 2015, available on the BCA’s website at http://economie.fgov.be/fr/binaries/2015_Note_Politique_Priorites_%20ABC_tcm326-266107.pdf. Accessed on 2 May 2015.
- 39.
Belgacom v. Base and Mobistar, para. 96.
- 40.
Case CONC-I/O-09-0015, wholesale electricity markets, op. cit.
- 41.
Case MEDE-PK-11/0027, NV Handling Co. v. NV Sony Pictures Releasing, BVBA The Walt Disney Company (Benelux), NV Universal Pictures International Belgium, NV Twentieth Century Fox Film Belge en Warner Bros. Studios Leavesden Limited, 2 December 2014.
- 42.
Belgacom v. Base and Mobistar, para. 53.
- 43.
Belgacom v. Base and Mobistar, para. 72.
- 44.
See the Opinion of the Belgian Competition Commission, 14 September 2009, CCE 2012-0963, available online at http://www.ccecrb.fgov.be/txt/fr/doc12-963.pdf. Accessed on 13 April 2015. This document duly summarises the views of stakeholders on this issue.
Acknowledgements
This report has been prepared with the support of the members of LIDC’s Belgian group (Association pour l’étude du droit de la concurrence—AEDC/Vereniging voor de studie van het mededindingsrecht—VSRM). The views and opinions expressed in this report are solely the author’s and do not reflect those of the law firms, institutions or companies to which the members of the AEDC/VSRM are affiliated.
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Sabbadini, P.M. (2017). Belgium. In: Këllezi, P., Kilpatrick, B., Kobel, P. (eds) Abuse of Dominant Position and Globalization & Protection and Disclosure of Trade Secrets and Know-How. LIDC Contributions on Antitrust Law, Intellectual Property and Unfair Competition. Springer, Cham. https://doi.org/10.1007/978-3-319-46891-4_3
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