In Belgian competition law, 2009 was a year characterised primarily by consolidation, increased maturity and greater sophistication of competition enforcement.
There were a number of interesting cases in the abuse of dominance area. First, 2009 will be remembered for the Competition Council's highest ever fine for the abuse of dominance. On 26 May 2009, the Council fined Belgacom's subsidiary Proximus € 66,3 million for having abused its dominance on the market for mobile telephony by applying a margin squeeze. Furthermore, also in the area of abuse of dominance, the President of the Competition Council for the first time overturned the Competition Prosecutor's rejection of a request for interim measures in the Mediacité saga opposing UGC and Kinepolis. Finally, ten years after being issued, the Competition Council's decision of January 1999 fining Suzuki, Honda, Yamaha and Kawasaki for abuse of dominance gave rise to two interesting Court of Appeal judgments. The Brussels Court of Appeal ruled on the Competition Council's obligation to sufficiently reason how it calculates fines in order to respect the parties' right of defence and the Antwerp Court of Appeal confirmed that antitrust fines may be deductible for tax declaration purposes.
While there were no cartel decisions, a number of high-profile cartel cases continue to be pursued by the Belgian Competition Authority.
The number of merger notifications dropped further to 5 in 2009 (down from 13 in 2008 and 20 in 2007). All mergers were cleared under the simplified procedure, except for the clearance of Publigas' acquisition of exclusive control over Fluxys (notified in October 2008), which resulted from the commitments offered by Suez in the context of the Suez/Gaz de France merger.
The 2006 Competition Act was amended by the Law of 6 May 2009. The main innovation was that the College of Competition Prosecutors can now drop a case, initiated after a complaint or a request by the Minister of Economic Affairs, in light of policy priorities and available resources. This newly introduced possibility was applied for the first time in September 2009, when the Competition Prosecutors closed a case against Belgacom, which had been opened further to a complaint for alleged abuse of dominance in relation to its fixed telephony business (the ‘Benefit Excellence' offer). In the same month, the Competition Prosecutors however also announced that they had submitted a report to the Council alleging that Belgacom had abused its dominant position by engaging in a margin squeeze resulting from its ‘Happy Time' offer.
On the institutional side, the College of Competition Prosecutors has been strengthened by the addition of three Deputy Competition Prosecutors, bringing the College up to eight members. Moreover, the Competition Directorate General was reinforced by a number of economists and additional case handlers. This strengthening of the Belgian Competition Authority resulted in a number of dawn raids, involving large teams, such as the one in the electricity sector in the autumn of 2009. Further reinforcement of the Belgian Competition Authority is also foreseen for 2010 as a chief economist will be appointed and new inspectors will be recruited. The Authority also intends to appoint a leniency officer to act as primary interface for leniency applicants in cartel cases.
A number of pending policy initiatives already announce an interesting 2010 in Belgian competition law. First, the Government announced its draft law on class action suits, which will in the future create the legal environment for the introduction of class action suits for damages in cartel cases. Second, the Government, in cooperation with the Competition Directorate, also took the necessary steps to allow the possible introduction of criminal sanctions for hard core cartels. This follows from the OECD's recommendations in its 2009 Economic Survey of Belgium, that the effectiveness of the Belgian Competition Authority could by enhanced by expanding the range of possible sanctions. Also, a number of final decisions in pending cartel and abuse of dominance cases are expected in 2010. Finally, there is no doubt that the Authority will initiate new cases in areas where healthy competition is key to the Belgian economy.
Click here for an overview of Belgian Competition Law Reports covering key developments in 2009.