In January 1999, the Competition Council ruled that Honda had abused its dominant position on the market of issuing conformity certificates for its own brand motorcycles. In that decision, the Council mainly considered a number of practices in relation to the intervention of official dealers in the homologation procedure to be abusive. Those measures slowed down the delivery of conformity certificates or in other ways penalised parallel importers. The Council imposed a fine of 743,680 Euro on Honda and also fined Suzuki, Yamaha and Kawasaki. The fine imposed on Honda is the largest fine ever imposed by the Belgian Competition Council.
On 2 February 2009, the Brussels Court of Appeal, by intermediate judgment, ruled on the appeal launched by Honda against this decision. The Court dismissed all Honda's procedural arguments and reiterated the Council's market definition and its establishing of Honda's abuse of dominance. However, the Court stated that Honda's argument in relation to the method for calculating the setting of the fine was founded. Honda mainly argued that the Council's decision did not mention any reasoning as to how the fine had been calculated, thereby depriving Honda from its right of defence, and that under the 1991 Competition Act, there was no legal basis to impose a fine "in accordance with the company's means". Based on the principles set out in the 2004 fining guidelines and the case law of the European Courts, the Court ruled that the Council had not indicated according to which principles or method the fine would be imposed and therefore that Honda had not received the opportunity to exercise its rights of defence. The Court also held that the Council had not provided any explanations as to how the turnover on the concerned product and the geographical market used to determine the basic amount had been calculated nor had the Council taken into account the turnover achieved during the preceding accounting year (as foreseen by Article 46 of the 1991 Belgian Competition Act).
The Court of Appeal therefore accepted Honda's appeal with regard to the fine imposed and decided to reopen the proceedings in order to give the parties the opportunity to further determine their position in relation to the amount of the fine to be imposed.
At a time where there is some uncertainty as to how the Council will calculate fines in a number of pending cases, the decision of the Court confirms the requirement for the parties concerned to be given an opportunity to comment on any proposed methodology to calculate the fine that the Council may contemplate to use.