On 29 January 2007, the Belgian Competition Council found that a trade association (Fedoba) organising biannual trade fairs for certain sweets that are traditionally distributed following the birth of a child (such as sugar almonds), chocolate and confectionery had infringed both the Belgian and EU cartel prohibition for some twenty years. However, the Council could fine neither the association nor its members, as a result of the immunities from fines that existed for associations of undertakings and for small and medium-sized enterprises (SMEs) under the former Competition Act ('Competition Act 1991'). These immunities are not retained in the current Competition Act, which came into force on 1 October 2006.
Fedoba had infringed the national and European cartel prohibition by providing in its statutory rules and trade fair regulations that participants to its fairs must be a member of Fedoba and that its members should reside or be domiciled in Belgium. As a result, foreign companies were effectively prevented from attending Fedoba’s trade fairs from 1985 until June 2005. While the Competition Council found that Fedoba’s conduct amounted to an infringement of both the Belgian and European cartel prohibition and that the cartel had been continuing for some twenty years, it concluded that the Competition Act 1991 allowed it to take into account only the facts relating to the five year period preceding the date of the opening of the investigation (on 2 December 2004). Furthermore, it considered that it could not fine Fedoba, as Fedoba discontinued its practice before the entry into force of the new Competition Act, whereas the Competition Act 1991 only allowed for the fining of individual undertakings, and not associations of undertakings. The Council also found that it could not fine the individual members of Fedoba, as they were all SMEs, which were also exempt from fines for infringements under the Competition Act 1991.
The Competition Council also examined the possibility of imposing a fine for the infringement of the EU cartel prohibition. Citing Regulation 1/2003, the Council noted that when national competition authorities consider it appropriate to impose a fine, they should apply their national rules on penalties. The Competition Council raised the question whether the immunities under national law impaired the effectiveness of the EU cartel prohibition for the period between 1 May 2004 (when Regulation 1/2003 entered into force) and June 2005 (when the cartel ended) and that the European Court of Justice requires national competition authorities to set aside national legislation infringing EU competition law. However, the Council then considered that the case in hand would not be “the right case” to take a position on that issue, as it would in any event have been inappropriate to impose a fine on the trade association or its members.
This case shows that various provisions of the Belgian Competition Act 1991 were, at least from 1 May 2004 onwards, difficult to reconcile with the objectives and the effectiveness of EU competition law. Although the Competition Council avoided the issue, this question is likely to come up again in other cases that are governed by the Competition Act 1991. The same holds true for the five-year statute of limitation, an issue which the new Competition Act deals with in a somewhat ambiguous manner.