Enforcement proceedings

Enforcement authorities

Which authorities are responsible for enforcement of the dominance rules and what powers of investigation do they have?

The Belgian Competition Authority (BCA) is the authority responsible for enforcement of dominance rules and replaced the previous Competition Council in 2013. As noted, the BCA is composed of its President, the Competition College, the Auditorate, and the Executive Committee (management of the BCA). The Auditorate and its prosecutors, headed by the Auditor General, is in charge of investigations (for all cases, including merger control). While the Auditorate can decide to close a case, the College is generally responsible for decision-making.

The Auditorate, headed by the Auditor General, is in charge of investigations, which it opens either following a complaint, ex officio, or at the request or injunction of the competent minister. The Auditorate’s investigation powers under Book IV of the Code of Economic Law (CEL) are aligned with those at EU level under Regulation No. 1/2003. The prosecutors of the Auditorate can request all necessary information from undertakings (and associations). They may conduct on-site inspections (dawn raids) between 8 am and 6 pm, and search business premises, transport vehicles, and other locations where they reasonably expect to find relevant documents or other records, including the homes of directors, managers and other employees of the undertakings (and associations) concerned. They may also search the business premises (and homes) of those in charge of  the commercial, fiscal, financial or administrative management of the undertakings and associations of undertakings concerned (including external providers). On-site inspections are, however, subject to the Auditorate obtaining a search warrant issued by an ‘investigating judge’. In 2019, the Brussels Court of Appeal partially annulled the Base/Belgacom Mobile decision (26 May 2009), as some parts of the decision were based on elements obtained during an on-site inspection conducted by the Auditorate without a warrant. Even though the then applicable legal framework did not require such warrant, the Brussels Court of Appeal concluded that the absence of any judicial control on the Auditorate’s on-site inspection powers were contrary to both the Belgian Constitution and international law (Proximus/BCA/Belgian State, 7 October 2020). The Auditorate may also seize and seal materials for the investigation, but for no more than 72 hours for non-business premises.

Besides the BCA, Belgian courts are also responsible for the enforcement of Belgian and European competition law. Belgian civil procedure does not foresee discovery as conceived in the United States, but courts may order parties to submit specified evidence (in a much narrower fashion). Courts may also appoint experts to assist them in their assessment, for instance, to understand cost structures or evaluate damages. Where a dispute hinges on the legality of a specific conduct under the CEL, courts must request a preliminary ruling from the Supreme Court (and stay their proceedings).

Since 22 August 2020, the BCA is competent to investigate abuses of economic dependency under the same procedural rules as those applicable to abuses of dominance. The only difference with this regime concerns fines, which are capped at 2 per cent of yearly turnover, and penalty payments, which are limited to 2 per cent of daily turnover (instead of 10 and 5 per cent, respectively). As in dominance cases, a finding of abuse may give rise to follow-on damages claims, requests for cease-and-desist orders or actions for annulment of contracts.

Sanctions and remedies

What sanctions and remedies may the authorities impose? May individuals be fined or sanctioned?

Where the BCA finds an infringement, including an abuse of dominance, it may order the termination of the conduct. The BCA has, however, never imposed structural remedies for abuses of dominance (and it is not clear that Book IV of the CEL enables it to do so).

The BCA may also impose fines on undertakings and associations. While the entry into force of Book IV of the CEL brought the possibility of fines against individuals, this only applies for individuals involved in cartel behaviour and not abuses of dominance. When imposing fines, the BCA cannot exceed the 10 per cent cap of the worldwide turnover realised in the last full year preceding the adoption of the decision. Fines are calculated pursuant to the BCA’s Fining Guidelines (latest version adopted on 3 September 2020), which refer to and generally follow the European Commission’s methodology (save for limited deviations). The BCA may also impose daily penalty payments of up to 5 per cent of the average daily turnover for non-compliance with a decision. Further, the BCA may impose fines of up to 1 per cent of the annual turnover where an undertaking (or association) wilfully or negligently obstructs the investigation, or provides incorrect, misleading, delayed or incomplete information. The highest fine ever imposed in a dominance case was a fine of €66.3 million, in the Base/Belgacom Mobile case (26 May 2009).

The BCA may also close investigations through settlement or commitments.

Commitment decisions do not involve a formal finding of infringement. Plaintiffs therefore cannot solely rely on such decisions as establishing fault under article 1382 of the old Belgian Civil Code as the basis for a follow-on damages claim before the national courts. Unlike the European Commission, the BCA does not generally make use of commitment procedures to close dominance cases. However, there are some notable exceptions. Commitments were used in November 2016 in the Immoweb case, pursuant to which Immoweb offered to unilaterally terminate the most-favoured-nation (MFN) clauses included in its contracts with software developers and to refrain from including such clauses in future contracts, for a period of five years (7 November 2016).

The BCA President may also impose interim measures during the investigation. It has done so relatively readily, compared with the European Commission and national competition authorities of neighbouring member states. Interim measures may be requested by a complainant, the Auditorate, the Minister of Economic Affairs, or the minister responsible for the sector in which the alleged abusive practice is taking place. Interim measures may be granted where there is a prima facie infringement and an urgent need to avoid a situation likely to cause serious and imminent harm that would be difficult to remedy, or a situation that is likely to harm the general economic interest. Contrary to the situation before Book IV of the CEL, strict deadlines apply to decide on requests for interim measures so that the decision must come within 12 weeks maximum of the request (a failure to do so amounts to a rejection).

Interim measures may take the form of cease-and-desist orders, but also of specific positive obligations. In HCSB/BGB, the BCA found prima facie evidence of an abuse by the Belgian Golf Billiards League (BGB), which accepted, without objective justification, only one brand of billiard balls in its games. The BCA imposed interim measures on BGB, essentially allowing it to choose between a suspension of its organisation rules or the launch of a tender to select billiard balls (24 January 2020). The BCA subsequently urged BGB to comply with the interim measures it ordered by way of a penalty payment (28 August 2020). In Feltz/BMW, the BCA obliged carmaker BMW to take certain measures to allow Feltz, a former official dealer, to remain active in the market as an independent repairer. These included sending a letter to Feltz’s customers informing them that they were free to choose their repairer and would not lose their warranty if they chose Feltz, and a letter to all official Belgian dealers and repairers confirming that they could sell spare parts to independent repairers (11 July 2014).

Enforcement process

Can the competition enforcers impose sanctions directly or must they petition a court or other authority?

The BCA can directly enforce Belgian and EU competition law and impose sanctions without having to petition a court.

Enforcement record

What is the recent enforcement record in your jurisdiction?

The BCA generally received several complaints a year relating to abuses of dominance, though many do not lead to a decision on the merits. The BCA adopts interim measures in dominance cases more readily compared to the European Commission and national competition authorities of neighbouring member states.

A recent interesting case is the Immoweb case, in which the BCA’s Auditorate closed its investigation into MFN clauses included in contracts between Immoweb, Belgium’s main real estate web portal, and software developers for real estate agencies (7 November 2016). In January 2015, the Auditorate had initiated an ex officio investigation into Immoweb’s practice of including MFN clauses in its contracts with developers, so that they had to offer Immoweb the more beneficial conditions afforded to competing web portals (if so). After the Auditorate preliminary found that the MFN clauses increased the cost of entry of competing real estate web portals, Immoweb proposed to unilaterally terminate the MFN clauses and refraining from including such clauses in future contracts with developers, for a period of five years. Because it was satisfied with the commitments, the Auditorate did not pursue the investigation and no finding of abuse of dominance was made. The BCA’s case followed investigations of other national competition authorities into MFN clauses in other sectors, and in particular in the travel sector (Booking.com investigations).

Contractual consequences

Where a clause in a contract involving a dominant company is inconsistent with the legislation, is the clause (or the entire contract) invalidated?

Infringing clauses will typically be considered void (Book IV of the CEL does not contain a specific provision on point).

Private enforcement

To what extent is private enforcement possible? Does the legislation provide a basis for a court or other authority to order a dominant firm to grant access, supply goods or services, conclude a contract or invalidate a provision or contract?

Private enforcement is possible in Belgium and parties may – and do – raise abuse of dominance claims before civil and commercial courts, for instance, to terminate contracts (clauses) or to seek damages. While not required to bring an action, a BCA decision finding an abuse may be very useful in support of private litigation.

Further, parties may, under a specific and effective procedure, obtain cease-and-desist orders from the President of the Enterprise Court with jurisdiction over the dispute (positive obligations are also possible). The Enterprise Court President’s orders are immediately enforceable even where appealed. Parties may also obtain interim measures from the president of the BCA.

Class actions as understood in the United States are not available in Belgium. However, Book XVII, Title 2 of the CEL (inserted by a law of 28 March 2014) introduced a form of collective redress for groups of consumers and, since June 2018, to SMEs, which also applies to cases seeking redress from violations of Belgian and EU competition rules.

Damages

Do companies harmed by abusive practices have a claim for damages? Who adjudicates claims and how are damages calculated or assessed?

Companies harmed by abusive practices may bring claims for damages to Belgian courts, under general tort law. Companies have to prove a fault imputable to the defendant (ie, the abuse), an injury suffered by the plaintiff, and a causal link between them.

Belgium has implemented the EU Damages Directive in Book XVII, Title 3 of the CEL, which also covers abuses of dominance. It includes an irrefutable presumption that a finding of abuse in a final decision by the BCA or the Market Court constitutes evidence of fault. Infringement decisions by competition authorities from other EU member states are only prima facie evidence of wrongdoing.

Appeals

To what court may authority decisions finding an abuse be appealed?

Decisions of the BCA may be appealed to the Market Court, a special division within the Brussels Court of Appeal set up in 2017 to review cases of an economic nature and relating to regulated markets, such as appeals against BCA decisions, but also against decisions of the BIPT (postal and telecoms regulator), FSMA and the National Bank (financial regulators), and CREG (gas and electricity regulator), the Supervisory Body for Railway Transport and Brussels Airport operations, and decisions of the Data Protection Authority’s Disputes Chamber. In general, the Market Court has full jurisdiction to review the facts and the law of the decisions being appealed. However, in cases where the Court, as opposed to the challenged decision, finds that there is an infringement of article 102 of the Treaty on the Functioning of the European Union (TFEU), the Market Court only has jurisdiction to annul the challenged decision. The Court, however, recently clarified that its competence under article IV.90(2)(2) of the CEL is not intended to offer a second review on the merits in cases where no illegality or irregularity can be established (The Great Circle/BCA, 8 May 2019).

An appeal will not suspend the challenged decision. However, the Market Court may, at the request of a party, suspend the enforcement of the appealed decision until the judgment. Suspension may only be ordered if there are serious grounds which are likely to lead to the annulment of the challenged decision and if there is a risk that the immediate enforcement of the challenged decision would cause serious harm to that interested party.

Market Court judgments may be challenged, on points of law, before the Supreme Court. In addition, the Supreme Court also issues preliminary rulings on the interpretation of Book IV of the CEL.

Settlement decisions of the BCA cannot be appealed by the settling parties. In the past, the Court of Appeal of Brussels has shown willingness to rule against the BCA, in particular with respect to companies’ rights in the context of on-site inspections.

Law stated date

Correct as of

Give the date on which the information above is accurate.

24 February 2021.