Unilateral conductUnilateral conduct by non-dominant firms
Are there any rules applying to the unilateral conduct of non-dominant firms?
Article IV.2 of the CEL only applies to dominant firms. For instance, under the ‘reflex’ or ‘mirror’ effect, conduct not prohibited under Belgian or EU competition law can generally not be prohibited as an unfair trade practice to the extent the claim against the conduct is one of impediment to the functioning of the free market (see question 1). A conduct not prohibited under Belgian or EU competition law on dominance may only constitute an unfair trade practice where it can be considered as an abuse of right (Belgian Supreme Court in Multipharma/Widmer, 7 January 2000).
Belgium has refrained from ‘adopting and applying on [its] territory stricter national laws that prohibit or sanction unilateral conduct engaged in by undertakings’ (as allowed by Regulation 1/2003). A draft bill regarding abuses of economic dependency by firms with ‘significant market positions’ is expected to be adopted in March 2019. The new rules would allow enforcement against non-dominant undertakings, similar to existing regulation in France. In view of the BCA’s limited resources, it can be expected that effective enforcement of these rules will take time.