On 18 July 2014, the Belgian Competition Authority (“BCA”) imposed a fine of EUR 2 million on Electrabel, Belgium’s largest energy provider, for abusing its dominant position between 2007-2009 and during the first quarter of 2010 (Case CONC-I/O-09-0015).
The BCA ruled that Electrabel infringed Article 3 of the Belgian Competition Act (applicable at the time – now article IV.2 of the Code of Economic law) and Article 102 TFEU on the market for the production, wholesale and trading of electricity by adopting and applying for sales of parts of the reserved capacity on the Belpex DAM exchange, a price scale including an excessive margin of 60 euros/MWh.
Electrabel’s arguments contesting the product market definition and disputing its dominant position were rejected by the BCA, which confirmed the findings of the Belgian Regulator for Electricity and Gas (“CREG”) that the company artificially raised electricity prices on the Belpex Belgian power exchange, thereby abusing its dominant position. However, the BCA dismissed the claim that Electrabel had kept excessive electricity reserves, on the grounds that it was not clear at the time that such conduct was anti-competitive and that Electrabel did not appear to try deliberately to increase its prices through such action.
In accordance with article IV.70, §1 of the Belgian Code of Economic law and the guidelines for the calculation of fines of 19 December 2011, the College took into account Electrabel’s directly affected turnover estimated at less than EUR 5 million for the duration of the infringement.