Anti-cartel enforcement in Belgium

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In 2018, the Competition Council did not take any fully fledged decision on the basis of Article IV.1 BCEL, which prohibits 'agreements between undertakings, all decisions by associations of undertakings and all concerted practices, the aim or consequence of which is to prevent, restrict or distort significantly competition in the Belgian market concerned or in a substantial part of that market'. A decision, however, is expected in the course of 2019 involving the Professional Body of Pharmacists (PBP). This case follows on from a preliminary measures decision taken in 2017 where it was found that prima facie the PBP had infringed Article IV.1 BCEL by engaging in different legal proceedings, defamatory practices, etc. directed against a new entrant, MediCare-Market. A report was filed by the Auditor on 31 October 2018.

No settlement decisions were taken in 2018. On 24 January 2019, the Prosecution Body issued a settlement decision in the area of infrared cabins. It imposed a fine of €98,000 on HM Products Benelux for fixing the maximum discount levels its distributors could grant. HM Products Benelux imports and distributes infrared cabins of the brand Healthmate that are used to alleviate muscle and joint pains.

The BCA concluded that fixing maximum discount levels that distributors can grant amounts to resale price maintenance. Abiding by the maximum discount levels was a necessary precondition for being allowed into the distributor network. The system was accompanied by price monitoring and possible sanctions. The whole system was perceived as a single and continuous infringement spanning eight years and six months.

The investigation started following information received by the Investigation and Prosecution Service, and led to a dawn raid in October 2016. Following settlement discussions started in July 2018, the BCA adopted a settlement decision on 24 January 2019. The basic amount of the fine exceeded the 10 per cent Belgian turnover threshold. As a consequence, the amount of the fine was limited to the 10 per cent ceiling. As HM Products Benelux is not part of a large international group, the BCA agreed to further reduce the fine on proportionality grounds. Finally, the amount was reduced by an additional 10 per cent because HM Products Benelux agreed to settle.

One of the major changes under the BCEL is the introduction of the possibility of imposing administrative penalties on individuals for direct involvement in hardcore antitrust infringements (with the exception of abuse of a dominant position). At the time of writing, the BCA has not yet imposed administrative penalties on individuals on that basis. However, these sanctions have caused individuals to consider whether they would, separately or jointly with the undertaking that is their employer, file an application for immunity. This possibility has been used by individuals and it is expected that this will be a growing source of information for the BCA.

Another interesting development in 2018 was the judgment by the Belgian Supreme Court confirming the Brussels Court of Appeals 2015 ruling that the dawn raids carried out by a number of stevedores did not meet the constitutional requirements for carrying out such a raid. As a consequence, the BCA was prevented from using any documents collected during the dawn raids. This was ultimately one of the reasons why the BCA decided to close the investigation on 5 February 2019.

Finally, in two separate cases, the Brussels Market Court clearly established the rules for the composition of the BCA when the latter has to rule again in a case where the first decision was (partly) annulled by the Brussels Market Court. Members of the BCA who ruled on the first case cannot be part of the BCA who will rule on the same case (or part of it) the second time. If these rules are not respected, the second decision will be annulled by the Brussels Market Court.

Over the past few years, a number of inspections have taken place, which is an indication that further decisions may be expected.

In May 2016, inspections took place of a number of Belgian undertakings operating in the sale of non-prescription products in pharmacies, given the fact that the BCA had information about possible infringements of Article IV.1 BCEL and Article 101 TFEU. In November 2016, other inspections took place at companies active in the wholesale distribution of pharmaceutical and para-pharmaceutical products to pharmacies in relation to alleged participation in anticompetitive agreements and concerted practices between wholesalers active in Belgium relating to services that they provide to pharmaceutical laboratories on the one hand, and to pharmacies on the other.

In May 2017, the BCA conducted a series of inspections for different suspected infringements. On 5 May 2017, inspections took place at the premises of one undertaking that distributes and sells water softeners for an alleged infringement of Article IV.1 BCEL and Article 101 TFEU. Three days later, an undertaking active in the distribution and sale of cooking utensils and wine accessories was searched by the inspectors of the BCA in relation to possible infringements of Article IV.1 BCEL and Article 101 TFEU. Finally, on 29 May 2017, the BCA conducted searches of some manufacturers and wholesalers of tobacco products, again in relation to possible infringements of Article IV.1 BCEL and Article 101 TFEU.

Also in 2018 a number of inspections were carried out. One concerned the sector of immunoglobulins and was carried out at the request of the Romanian authority. A second inspection was carried out jointly with the French authority and involved cosmetics. The last inspection concerned fire safety equipment and was carried out at one company's premises.

At the time of writing, none of these inspections has led to a decision of the Prosecution Body or of the Competition College.

Also, as discussed earlier, the Prosecution Body filed a report on 31 October 2018 in relation to the Professional Body of Pharmacists. A decision can be expected in 2019.