The complainants, which remained anonymous in this case, alleged that Telenet, a provider of analogue and digital TV, had bought one of the two remaining available Digital Video Broadcasting (DVB-T) frequencies with the sole purpose of excluding possible new entrants in the DVB-T market, who would compete with Telenet’s TV offer.
In addition to the three traditional ways of receiving TV emissions in Belgium (i.e. through cable, IP-TV or satellite), it is the Flemish government’s aim to also enable TV reception via DVB-T (in order for consumers to enjoy DVB-T, they need a decoder and a smartcard). To that end, it has awarded licenses to Norkring N.V., which owns and operates the transmitters. There are only four frequencies available for DVB-T, two of which are already assigned to the public broadcaster VRT and to applications for television on cell phones. Hence, only two frequencies, each capable of carrying 5 to 6 channels, were still available to third parties.
Upon filing their complaint, the complainants also filed for interim measures, seeking a temporary injunction to suspend the execution of the agreement between Norkring and Telenet.
Under Belgian competition law, interim measures can only be imposed if the complainant establishes a direct and immediate interest, a prima facie infringement of the Belgian Competition Act and an urgent need to avert a situation that could cause serious, imminent and irreparable harm to the claimant or the general economic interest.
The President of the Council started off by ruling that consumers are allowed to file for interim measures, even though this is not explicitly provided for in the Belgian Competition Act and its implementing Royal Decrees.
The President found that the claimants had a prima facie case and that the general economic interest might be harmed by the alleged restrictive practices. However, the claimants failed to establish that the harm would be irreparable, as it would merely consist in switching costs for consumers, which could easily be reimbursed by the defendant, should the Council uphold the existence of a restrictive practice in its analysis of the merits. For this reason, the application for interim measures was rejected.
