On December 8 2011 the Competition Council ruled that the adoption by the National Chamber of Judicial Officers of Directive 2008/001 infringed Article 2 of the Competition Act (which is the equivalent of Article 101 on the Treaty on the Functioning of the European Union). The directive relates to the fees that judicial officers are required to apply for so-called 'amicable' (ie, pre-judicial) collection.
On July 9 2008 several judicial officers lodged a complaint against the chamber, accusing it of infringing competition law by adopting the directive. Although the plaintiffs withdrew their complaint on August 31 2011, the College of Competition Prosecutors pursued the instruction and extended its scope to Articles 85 and 86 of the consolidated rules applicable to judicial officers.
In Belgium, judicial officers can perform both judicial and extra-judicial tasks, but only judicial tasks are subject to a legal fee system. Judicial officers compete with other professionals (eg, lawyers and private collection agencies) with respect to extra-judicial tasks, particularly for the amicable recovery of debts.
According to the prosecutors, the adoption of the directive (in connection with Articles 85 and 86 of the rules), which aimed to impose the aforementioned fee system on extra-judicial tasks (and particularly on amicable collection), should be interpreted as a decision by an association of undertakings with the aim of significantly restricting competition in the market in question.
Judicial officers are considered members of the liberal professions when performing extra-judicial tasks. Case law has consistently held that such professionals are 'undertakings' within the meaning of Article 2 of the Competition Act; the fact that judicial officers also perform judicial tasks whereby they exercise state authority does not preclude the application of competition rules to extra-judicial tasks. In support of its reasoning, the council stated that even within markets in which services are partially or almost entirely regulated, competition rules apply in the unregulated segment.
The council went on to assess the restrictive character of the activity in question. It found it sufficient to establish that the directive and Articles 85 and 86 of the rules clearly intended to fix the fees that judicial officers are required to apply for some extra-judicial services. Moreover, in response to the claim that the competition regime allows an element of tolerance for maximum fees, the council noted that this could not justify a restriction in the context of horizontal agreements or decisions by associations of undertakings, as the tolerance argument may be considered only in assessing restrictions on vertical agreements. In addition, the restrictive character of the directive and Articles 85 and 86 of the rules also reflected the advantage accruing to judicial officers in comparison with other professionals who offer the same service on the market for pre-judicial collection. The directive enabled judicial officers to impose costs for pre-judicial collection on the debtor, whereas lawyers or private collection agencies are required to impose such costs on the creditor.(1) This gave creditors a considerable incentive to choose judicial officers instead of lawyers or private collection agencies for pre-judicial collection activities.
As the purpose of the directive was to regulate the level of the judicial officers' fees for pre-judicial collection services, the council considered that the adoption of the directive constituted a restriction by object, as well as a sensitive restriction, even though the directive could also be considered to have another purpose - namely, that of protecting consumers against unfair conduct from judicial officers.
The council considered the nature of the infringement, its duration, its historical character and the difficulty in interpreting the various applicable legal texts and their divergent terminology. As a result, the council decided that it would be neither convenient nor useful to impose a fine as a deterrent. Instead, it merely ordered the chamber to publish the decision on its website for a period of at least six months and to inform its members of the content of the decision in writing, although the directive in question was repealed in April 2009.
For further information on this topic please contact Carmen Verdonck or Geoffroy Regout at ALTIUS by telephone (+32 2 426 1414), fax (+32 2 426 2030) or email ([email protected] or [email protected]).
Endnotes
(1) Pursuant to the Act on the Amicable Collection of Consumer Debts (December 20 2002).