On 10 November 2016, Brussels Court of Appeal (the “Court”) annulled the decision of the Belgian Competition Authority (“BCA”) to impose a fine of more than € 37 million on bpost for abuse of dominance. The Court held that BCA’s decision breached the fundamental human rights principle of ne bis in idem, according to which no one may be punished twice for the same illegal behaviour.
Bpost is Belgium’s historical postal service provider and offers postal distribution services to end users as well as other categories of clients such as consolidators. Consolidators are companies which offer end customers upstream postal services such as collection, sorting and packaging but rely on bpost for the actual distribution of the mailings. Bpost itself also offers consolidator services.
In 2010, bpost introduced a new rebate system for contractual tariffs. The system included a quantity discount calculated on the basis of the volume of mailings supplied. For consolidators the rebate was however not calculated on the basis of the total volume they provided to bpost, but on the basis of the individual volume of mailings generated by each of the consolidators’ clients. The rebate system had the result that consolidators’ rebates were based on much smaller volumes compared to other bulk mailers.
Bpost’s tariff model was the subject of an investigation by BIPT, the regulator for the Belgian postal and telecommunications sector. By decision of 20 July 2011, BIPT decided that bpost had discriminated against consolidators by refusing to take into account the total volume of mailings they supplied to bpost and thus depriving them in practice of higher quantity rebates. BIPT imposed a fine of € 2.3 million on bpost.
In parallel, BCA had also commenced an investigation into bpost’s new rebate system. By decision of 10 December 2012, it decided that bpost had abused its dominant position on the market for industrial domestic mail by introducing the tariff and rebates model. BCA found that as a result of the rebate system, consolidators were not able to offer end consumers more favourable terms than when the latter would contract directly with bpost. End users therefore had no incentive to use the services of a consolidator. As bpost is the historical and largest postal service provider, the rebate system consequently had a loyalty-inducing effect which prevented access for consolidators to larger clients and generally increased barriers to entry on the relevant market. For those reasons, BCA imposed a fine of € 37.4 million on bpost for infringing both Belgian and EU competition law, by abusing its dominant position.
Bpost appealed both decisions to the Court. By judgement of 10 March 2016, the Court had already annulled the BIPT decision, on the grounds that there was no discrimination. Now, by judgement of 10 November 2016, the Court has also annulled the BCA decision. The Court essentially held that although the BIPT and BCA investigations were founded on different legal bases (postal sectoral regulations and competition law), the principle of ne bis in idem applies since both investigations had a penal character and concerned (i) the same offender, (ii) the same allegedly illegal behaviour, (iii) the same undertakings concerned, and (iv) the same markets concerned. Consequently, the Court held that, by launching a second investigation into bpost’s introduction of a new tariff and rebates model, which had previously already been the object of an investigation by BIPT, BCA had breached the principle of ne bis in idem.
BCA may appeal the decision to the Supreme Court (Cour de Cassation / Hof van Cassatie). In practice, sectoral regulators and BCA will undoubtedly take this decision into account when considering parallel investigations.
The full text of the Court’s judgement of 10 March 2016 can be found here (available only in French).