Abuse of dominanceDefinition of abuse of dominance
How is abuse of dominance defined and identified? What conduct is subject to a per se prohibition?
As noted, article IV.2 of the CEL mirrors article 102 of the TFEU and contains the same non-exhaustive list of the types of conduct that may constitute an abuse. EU-level inspiration extends to the practice of antitrust, as the BCA and Belgian courts will generally rely on precedents of the European Commission and EU courts, and on the Commission’s Guidance Paper on article 82 of the TEC (102 TFEU).
As such, the BCA generally follows an effects-based approach to identifying abuse (but certain conduct could be considered as abusive per se, equally in line with EU practice). The BCA and Belgian courts will analyse a dominant player’s conduct based on its actual or likely effect on competition, and will use various tests to assess the conduct’s likely effects. However, courts may occasionally take a more form-based approach (including when applying said tests).Exploitative and exclusionary practices
Does the concept of abuse cover both exploitative and exclusionary practices?
Yes. Like article 102 of the TFEU, article IV.2 of the CEL covers both exploitative and exclusionary practices.Link between dominance and abuse
What link must be shown between dominance and abuse? May conduct by a dominant company also be abusive if it occurs on an adjacent market to the dominated market?
While a finding of abuse of dominance requires both dominance and abusive conduct, precedents confirm that the dominance and the abuse need not occur on the same market. In Rendac NV/Incine BVBA (12 November 2002), the Brussels Court of Appeal confirmed the BCA’s decision (see question 9) and held that an undertaking dominant on one market may infringe article IV.2 of the CEL based on an abuse on a neighbouring market where it is not dominant. More recently, in the National Lottery case (22 September 2015), the BCA fined the National Lottery for abusing its dominant position in the market for public lotteries (a legal monopoly) when launching a new product on the neighbouring market for sports betting. The National Lottery had used customer details obtained through its activities on the former market, when launching its product on the latter market. It had also obtained commercially sensitive information about competitors, before and after the launch, from retailers (whose turnover largely stems from the sale of lottery products).Defences
What defences may be raised to allegations of abuse of dominance? When exclusionary intent is shown, are defences an option?
A dominant undertaking’s conduct will not constitute an abuse if it is ‘objectively justified’. The BCA has also recognised the ‘state action defence’ (ie, where the undertaking is engaged in anticompetitive conduct as a result of binding state measures (in Way Up/Belgacom, 22 April 1999, and in Executive Limousine Organisation/BIAC, 28 May 2001)).