On 8 December 2011, the Belgian Competition Council adopted a decision establishing that the National Chamber of bailiffs infringed the Belgian Competition Act.
Bailiffs have both judicial and extrajudicial activities. The judicial activities are heavily regulated with the bailiffs’ tariffs being set out in a Royal Decree. On the other hand, bailiffs’ extrajudicial activities (i.e. activities that fall outside the scope of a judicial procedure), such as the amicable recovery of consumer debts, are not subject to legal tariffs and are provided in competition with lawyers and private companies. In 2008, the National Chamber adopted a directive extending the application of legal tariffs to the amicable recovery of consumer debts.
In its decision, the Council made clear that the fact that bailiffs are empowered by a public authority through their judicial activities does not prevent competition law from applying to their other activities. Also, the fact that tariffs for the bailiffs’ judicial activities were set by public authorities did not empower the National Chamber to regulate extrajudicial activities, which fall outside of the scope of the bailiffs’ legal mission. Thus, the directive constituted an anticompetitive price-fixing agreement which is illegal per se, without it being necessary to prove anticompetitive effects. The Council furthermore noted that the directive granted an unfair advantage to bailiffs as compared to lawyers or private recovery companies because it provided that bailiffs are allowed to charge the debtor instead of their client (the creditor) for their services, in the same way as when they exercise their judicial activities.
Although the Competition Council established that the National Chamber had infringed the competition rules, it decided it was “neither relevant nor useful” to impose a fine. The Competition Council considered it was essential to raise awareness in the National Chamber and among bailiffs and therefore required the publication of the Council’s decision on the National Chamber’s website for a period of six months and the circulation of the decision to the National Chamber’s members.
