Similarly to what happened in the northern, Dutch-speaking part of Belgium at the end of the 1990s (when most of the municipal cable operators there joined forces to create Telenet), a market consolidation has been brought about in the southern, French-speaking part of the country and Brussels as a result of the acquisition by Tecteo of eight smaller cable operators and its subsequent merger with Brutélé. The notification of this concentration to the Belgian Competition Council on 28 September 2007 has, however, resulted in an unprecedented procedural battle which does not seem to have been concluded yet.
Belgacom, Belgium’s incumbent telecom operator and, just like the cable operators, a provider of broadband internet, telephone and television services, asked the Council to be heard in the case and also requested access to the file (including to the report prepared by the Competition Prosecutor). The Council found that the Belgian Competition Act was unclear as to whether Belgacom had to or could be given access to the file and therefore, on 21 November 2007, decided to address a preliminary question to the Supreme Court. In the meantime, the Council suspended its review of the concentration.
Tecteo and Brutélé had not been informed of Belgacom’s request: when they became aware through the decision of the Council, they immediately sent the report of the Competition Prosecutor, as well as certain documents from the file, to Belgacom. They also appealed the decision of the Council to suspend its review, before the Court of Appeal in Brussels. In its judgement of 27 December 2007, the Court annulled the suspension of the review period by the Council on two grounds. First of all, the Court held that, whereas the Competition Act provides for a suspension of the deadlines and proceedings if a tribunal requests a preliminary ruling which is necessary to adjudicate on a dispute, the Competition Council is not a tribunal in the sense of the Act and the control of concentrations does not involve a “dispute”. Secondly, the Court considered that the Council had infringed the rights of defence of the merger parties by failing to hear them before it decided to request a preliminary ruling and suspend the proceedings. Following the Court’s judgement, the parties decided to close the transaction on 28 December 2007. On 21 January, Belgacom has however introduced an appeal to the Court of Appeal in Brussels against the tacit approval of the merger by the Competition Council.
On 7 January 2008, the Council informed the Supreme Court and the parties that, despite the judgement of the Court of Appeal, it would continue its merger investigation. On 22 January 2008, the Supreme Court delivered its judgement on the preliminary questions asked by the Competition Council. The Supreme Court held that the questions were admissible since the control of concentrations by the Competition Council concerned a “dispute” in the sense of the Competition Act. The Supreme Court refused to rule on any breach of the merging parties’ rights of defence, as the object of the procedure was not an appeal against the decision of the Council but only a preliminary ruling. The Supreme Court also rejected the argument of the merging parties that the Council’s questions had become without object now that the Court of Appeal had annulled the Council’s decision, stating that, as a general rule, the Supreme Court does not rule on the usefulness of preliminary questions asked. It then turned to the questions themselves and ruled that there was no right of a third party to have access to the file but that such access could be granted to the extent necessary for the third party to make its views known.
Tecteo and Brutélé had in the meantime filed an appeal against the Council’s letter of 7 January 2008, and on 1 February 2008 the Court of Appeal of Brussels decided to address a preliminary request to the Constitutional Court in relation to the compatibility of the provisions in the Competition Act on preliminary questions and suspension of deadlines with the Belgian constitution and the principle of due process.
On 25 April 2008, the Competition Council approved the merger subject to the parties committing (i) not to impose exclusivity on free to air channels and (ii) not to limit access to their cable network. Both the merging parties and Belgacom have appealed this decision.