The Belgian Competition Council adopted a decision on 30 July 2012 imposing a fine of EUR 245.530 on Presstalis, a French company exporting French press, because it abused its dominant position.
Presstalis is a French company active in the export of magazines and newspapers from France to other countries, including Belgium. From 2000 to 2004, Presstalis granted the French publishers an attractive rebate if they would give Presstalis the exclusive right to distribute their publications in Belgium, Canada and Switzerland. On 7 February 2003, Tondeur Diffusion, a Belgian press distributor, lodged a complaint before the Belgian Competition Council against Presstalis for abusing its dominant position through its rebates policy. Similar complaints were also lodged before the French Competition Council and the European Commission but both rejected these complaints on procedural grounds. However, the Belgian Competition Council admitted the complaint and analyzed the case under article 3 of the Belgian Competition Act and article 102 TFEU.
According to the Council, Presstalis held a long term dominant position on the export market of French press publications (Presstalis held 90% of the market share, the rest of the market being shared between Export Press, a small competitor of Presstalis, and French distributors which organized the export of their own publications themselves). Presstalis had argued that its rebate system needed to be assessed in relation to the Belgian distribution market of press publications on which it was not active and could not, therefore, be dominant. The Council rejected this argument because, in the assessment of dominance, the market on which the undertaking concerned operates is not the only relevant market; markets that can be affected by the undertaking’s behaviour must also be considered. The Council concluded that the export market for French press publications and the Belgian press distribution market are closely related, and pointed out that the nature of the rebate system applied by Presstalis itself created an obvious link between the two markets: the rebate was given to publishers which agreed that Presstalis would have the exclusive right to export their goods (upstream market) to distributors active in Belgium, Switzerland and Canada (downstream markets). Therefore Presstalis' dominant position had an impact on the Belgian press distribution market as well.
The Council found that Presstalis abused its dominant position from 2000 to 2004 because the rebates it granted were loyalty-inducing and had a crowding-out effect. The Council undertook a detailed analysis of the conditions of application of the rebate system and concluded that the French publishers were indeed encouraged to deal exclusively with Presstalis on the export market (upstream market) and that it was difficult for competitors to offer a more attractive rate than the one used by Presstalis. Moreover, the Council noted that Presstalis had privileged relationships with every major distributor in Belgium, Canada and Switzerland. For instance, Presstalis had an exclusive contract with Belgian distributor AMP, subject only to a publisher’s insistence on another distributor, for the distribution of French press in Belgium. This exclusive relationship, combined with the rebate, strengthened the dominant position that AMP already held on the Belgian market for press distribution, thus the Council also judged this practice as having a restrictive effect on the downstream Belgian press distribution market.
Taking into account the gravity of the infringement and the fact that the Presstalis withdrew its rebate system in 2004, the Council imposed a fine of EUR 245.530 on Presstalis.