On 16 April 2007, the Belgian Competition Council revoked conditions which it had imposed in 1997 when granting conditional approval for the concentration of Group Bert and Group Claeys, which created the Kinepolis Group. Both merging parties were active in the market for the screening of films in movie theatres. The main condition imposed by the Competition Council was a prohibition on building or acquiring new cinema complexes or expanding, renovating or replacing an existing complex (where more than 20 per cent new seats or theatres would be created), without approval from the Competition Council.
When reviewing these conditions in 2007, the Competition Council concluded that it was no longer justifiable to maintain these conditions as the market structure had significantly changed since 1997. The Competition Council inter alia found that the market shares of Kinepolis had decreased).
In May 2007, the Belgian Federation of Cinemas (FCB), UGC and Utopolis (both also active in the market for theatrical releases of movies in Belgium) appealed this decision.
On 18 March 2008, the Brussels Court of Appeal annulled the decision of the Competition Council revoking the conditions, on several grounds. First, the chamber of the Competition Council which had taken the decision had not been composed according to Article 19 of the Belgian Competition Act. Under Article 19, the General Assembly of the Competition Council must compose the different chambers of the Council every year. Secondly, the Competition Council had rejected the request of interested third parties for access to the file without providing them with any explanation. Thirdly, the Court found that, manifestly, the evidence relied on by the Competition Council was not factually accurate, reliable and consistent. The Court held that the request of Kinepolis for revoking the conditions imposed on it in 1997 should be reassessed by the Competition Council.
This judgment was an opportunity for the Brussels Court of Appeal to clarify the extent of its judicial review in merger control cases. Any review by the Brussels Court of Appeal of complex economic assessments made by the Council in the exercise of its power of assessment as conferred on it by the Competition Act is limited to the rules governing procedure, the substantive accuracy of the facts and the absence of manifest errors of assessment or misuse of powers. For this reason, if the Court annuls a decision of the Council clearing a merger or revoking conditions, the Council has to reassess the merger or the request for revocation of conditions if the parties concerned want to proceed with their transaction.