On 7 September 2016, the Brussels Court of Appeal (the “Court”) confirmed the interim measures of the Belgian Competition Authority (“BCA”) preventing cable and pay TV provider Telenet from exclusively broadcasting the Superprestige Cyclocross competition for five years.
In 2015, the VZW Verenigde Veldritorganisatoren (“VVO”), organizer of the Superprestige cyclocross, granted Telenet exclusive TV broadcasting rights for the Superprestige for five years. As no prior tender had taken place, Telenet’s competitor Proximus filed a complaint to the BCA and asked for interim measures based on an alleged abuse of dominance and/or a violation of the cartel prohibition. The BCA granted the request, as a result of which VVO had to suspend the exclusivity clause and offer the broadcasting rights to any interested party on fair, reasonable and non-discriminatory terms pending a final decision by the BCA [see our January 2016 newsletter].
On appeal, the Court ruled that the BCA applied the correct standard for imposing provisional measures by stating that it was not manifestly unreasonable to hold that the exclusivity agreement may restrict competition on the market for cyclocross broadcasting licenses as well as strengthen Telenet’s dominant position on the retail market for television services. The BCA’s assessment was found to be sufficiently reasoned, based on the exclusive character and length of the agreement, the ‘premium’ character of the content, Telenet’s dominance and the lack of a prior tender.
One of the conditions to obtain interim measures is that the disadvantage must be serious and hard to reverse. In that regard, the Court stated that the BCA is entitled to consider the interests of the complainant as well as of other parties, e.g. sport channels. The fact that Telenet would become the only provider of a comprehensive range of cyclocross races constituted a significant barrier and impairment for its competitors, which could lead to exclusionary effects. The Court therefore dismissed the appeal in its entirety and confirmed the interim measures.
The judgment shows once again that the threshold applied to obtaining interim measures in competition cases as well as the chances of seeing interim measures reversed on appeal in Belgium is low.