On 22 September 2015, the Prosecution Body of the Belgian Competition Authority rendered its first settlement decision in an abuse of dominance case. While the European Commission's settlement procedure only applies to cartel cases, the Belgian Code of Economic Law ("BCEL") also provides for the possibility of settling abuse of dominance cases, even where Article 102 TFEU is applicable as well.
In May 2013, four companies active in the sector of sports betting lodged a complaint with the Belgian Competition Authority against the National Lottery. Besides its activities linked to the organization of public lotteries, for which it benefits from a legal monopoly, the National Lottery began to offer sports betting in 2013. According to the complainants, the National Lottery abused its dominant position when launching its sports betting product Scooore!
Although the Belgian Competition Authority dismissed most of the objections raised by the complainants, it considered that the National Lottery infringed Article IV.2 BCEL and Article 102 TFEU by: (i) making a one-off use of contact details of persons registered in its database obtained in the context of its legal monopoly, in order to send a promotional email for the launch of Scooore!; and (ii) requesting and receiving from its dealers commercially sensitive information about competitors active in the sector of sports betting.
Regarding the first practice, the Belgian Competition Authority recalled that certain behavior carried out on another market than that on which an undertaking has a dominant position can be considered an abuse of a dominant position, even if such behavior actually took place and had effects on that related market and not on the market where the undertaking is dominant. In view thereof, applying for the first time its 2014 fining guidelines, the Belgian Competition Authority imposed a fine of EUR 1,190,000 on the National Lottery.
Although the Belgian Competition Authority indicated in its press release that the settlement decision cannot be appealed, provisions in the BCEL indicate that the appeal restriction is limited to the addressee of the decision. Therefore, it cannot be excluded that one of the complainants may be able to successfully launch an appeal.