On 13 July 2012, the President of the Competition Council adopted a decision that extends the obligation for De Beers to deliver its diamonds to Spira until 31 December 2012.
In 2003, the Belgian rough diamonds producer De Beers introduced a new distribution system named “Supplier of Choice” (SoC). Under this system, customers had to fulfil a set of criteria in order to be supplied by De Beers. Spira, a Belgian rough diamonds trader, did not meet these criteria and was therefore no longer supplied by De Beers.
Following a complaint brought by Spira, the President of the Competition Council adopted an interim measure on 25 October 2010 that ordered De Beers to continue to supply to Spira. The President found that De Beers abused its dominant position on the market for the supply of rough diamonds by implementing the SoC system. On the facts, Spira’s difficulties in gaining entry into the system foreclosed it from the market due to the lack of alternative sources of supply. The system implemented had a crowding-out effect on the downstream market and was therefore considered as prima facie abusive (for a summary of the decision of the President of the Competition Council imposing interim measures, see Belgian Competition Law Report 2011/Q1).
The decision of the President was been confirmed by the Brussels Court of Appeal on 19 October 2011, with exception to the duration of the interim measure. The Court estimated that the imposed interim measure should be limited in time and fixed the obligation for De Beers to supply diamonds to Spira until 30 April 2012 (for a summary of the judgment of the Court, see Belgian Competition Law Report 2012/Q1) This deadline has been temporally extended to 13 July 2012 by the President of the Competition Council in its decision of 27 April 2012.
On 13 July 2012, the President of the Competition Council once again extended the order for De Beers to supply diamonds to Spira until 31 December 2012. The President judged it was necessary to extend the obligation to supply because removal of the arrangement would still cause serious, immediate and irreparable harm to Spira. The President considered it appropriate to choose the end of the year as the expiration date, due to the procedure pending in front of the General Court of the European Union against the decision of the European Commission rejecting Spira’s complaint. Depending on the outcome of those proceedings, it will be determined whether the interim measure need to be maintained for a longer period of time.