On 24 April 2008, the College of Prosecutors started an investigation into the retail sector on suspicions of concerted practices. These practices allegedly took place between Ferrero, Lidl Belgium, Colruyt, Cora, ITM Belgium, groupe Delhaize and Carrefour Belgium. The investigation resulted in a report of 11 January 2010 in which the Prosecutor alleged that Ferrero and the above retailers had engaged in coordinated price increases and the exchange of confidential information on the markets for the distribution of chocolates, chocolate spreads and sweets.
On 7 April 2011, the Competition Council declared that the Prosecutor had breached the rights of defence of the companies which were subject to the investigation and therefore decided that the Prosecutor’s report could not be the basis of a decision on the merits of the case. Essentially, the Council considered that the Prosecutor’s decision to split the original investigation into two separate cases (an “A case” and a “B case”) prevented the parties involved from accessing any document that could be potentially relevant for their defence. According to the Council, the file of the “B case”, to which the parties could have access, was incomplete as it only contained a selection of documents (the remainder of the documents being in the “A case” file, to which the parties could not have access). As a result, potentially exculpating evidence which might have been included in the “A case” file remained inaccessible to the parties. This was held to infringe the parties’ rights of defence and also created an appearance of lack of objectivity of the investigation.
As a result, the Council could not assess the investigative measures taken by the Prosecutor nor whether the Prosecutor demonstrated the existence of an infringement of the competition rules. The Council concluded that, as a consequence of the infringement of the rights of defence of the undertakings, the allegations made by the Prosecutor could not be assessed on their merits.