Enforcement proceedings in dominance in Belgium

Enforcement proceedings

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

The BCA is the authority responsible for enforcement of dominance rules, and replaced the previous Competition Council in 2013 (see question 1). 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 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 8am and 6pm, 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’. The Auditorate may 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).

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 turnover realised in Belgium (including exports) in the last full year preceding the adoption of the decision. Fines are calculated pursuant to the BCA’s 2014 Fining Guidelines, which refer to and generally follow the European Commission’s methodology (save limited deviations). The BCA may also impose daily penalty payments of up to 5 per cent of the average daily turnover in the preceding financial year 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, see questions 14 and 18).

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 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). Furthermore, the Auditorate recently closed an investigation of the FEI initiated in 2015 (see questions 16 and 25), pursuant to commitments (20 December 2018). The Auditorate’s preliminary assessment considered potential abuses in (i) the opacity of the accreditation rules related to new team show jumping series; (ii) the penalties for participating in events not approved by the FEI; and (iii) the ability given to the FEI to raise objections to potential new entrants on the market in case of conflict of dates (ie, when two or more events are organised in parallel). In response to the Auditorate’s concerns, the FEI offered to establish a transparent procedure for the approval of new series, and to amend its rules concerning the participation to non-FEI accredited events and the conflict of dates.

In its first and only settlement in a dominance case to date, the BCA settled in the National Lottery case (see questions 12 and 25).

The BCA President may also impose interim measures during the investigation, as illustrated on various occasions in questions above. It has done so relatively readily, compared to 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 Spira/De Beers (see question 19), the BCA found prima facie evidence of an abuse by De Beers with serious harm on Spira, after Spira no longer qualified as a distributor under De Beers’ newly implemented ‘supplier of choice’ system. The President of the BCA ordered De Beers to continue supplying rough diamonds to Spira, a measure that was extended on multiple occasions (original decision 25 November 2010). In Feltz/BMW, the BCA obliged 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 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).

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.

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. As mentioned above, the BCA adopts interim measures in dominance cases more readily compared to the European Commission and national competition authorities of neighbouring member states (see question 27).

A recent interesting case is the Immoweb case (see question 27), 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 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).

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).

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 (see also question 32).

Further, parties may, under a specific and effective procedure, obtain cease-and-desist orders from the President of the Commercial Court with jurisdiction over the dispute (positive obligations are also possible). The Commercial Court President’s orders are immediately enforceable even where appealed. Parties may also obtain interim measures from the President of the BCA (see question 27).

Class actions as understood in the United States are not available in Belgium. However, a law of 28 March 2014 introduced a form of collective redress for groups of consumers, which also applies to cases seeking redress from violations of competition rules.

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.

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

Decisions of the BCA may be appealed to the Market Court, which has full jurisdiction to review the facts and the law. The Market Court, a special division within the Brussels Court of Appeal, was 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 (financial regulator), and CREG (gas and electricity regulator). 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.