Antitrust: restrictive agreements and dominancei Significant cases
Article IV.1 and Article IV.2 BCEL are the Belgian competition rules equivalent to Articles 101 and 102 TFEU. Article IV.1, Section 1, BCEL stipulates that 'without the need of a prior decision to that effect, all agreements between undertakings, all decisions by associations of undertakings and all concerted practices, the aim or consequence of which is to prevent, restrict or distort significantly competition in the Belgian market concerned or in a substantial part of that market are prohibited'; whereas Article IV.2 BCEL states that 'without the need for a prior decision to that effect, the abuse by one or more undertakings of a dominant position in the Belgian market concerned or in a substantial part of that market is prohibited.'
On 20 December 2018, the Prosecution Body closed an investigation into anticompetitive practices by the International Federation for Equestrian Sports (FEI) after the latter had given commitments. The investigation was launched following several complaints. Even though the complaints were withdrawn, the BCA continued the investigation. The complaints concerned (1) some provisions of the FEI General Regulations which stipulate that the participation of athletes, horses or officials in events that have not been approved by the FEI could be subject to a penalty of six months renewable; (2) the lack of transparency of the FEI approval process; and (3) the sanctions imposed on athletes, horses and officials participating in competitions not approved by the FEI. They were likely to foreclose competitors from the market for the organisation and commercial operation of five-star competitions. One of these complaints concerned a provision of the FEI General Regulations, which provides that the organisation of five-star competitions must be subject to an application for registration in the FEI calendar two years before the date of the first edition of the contest. The FEI offered commitments as regards the procedure for approval of new series, in the immediate establishment of a transparent procedure. Regarding the rules concerning the participation in events not recognised by the FEI and the conflict of dates, procedural and substantive changes were adopted by the board of the FEI on 20 November 2018. The board committed to support these changes at the next general assembly of the FEI.
With regard to abuses of a dominant position, it is important to recall that in 2015, the Prosecution Body adopted a settlement decision in relation to an abuse of a dominant position, which was a first in Belgium. The European Commission, for example, does not apply the settlement procedure to abuses of a dominant position.
No infringement decisions relating to an abuse of a dominant position were taken in 2018. However, in one case the BCA imposed interim measures on ABB Industrial Solutions BVBA in respect of its pricing policies for lids for electricity meter boxes. Following a tender organised by Eandis, ABB was selected as the exclusive supplier of lids for smart electricity meter boxes. Any supplier of a full smart electricity meter box, consequently, had to buy the lid from ABB, which also sold complete smart electricity meter boxes. The complainant claimed that ABB replied late to requests for quotations; that orders were confirmed late or sometimes even not at all; that delivery times were changed unilaterally and were invariably long; that it was giving priority to Eandis' orders; that it charged substantially lower prices to Eandis, while the Eandis tender had specified that all installers should be able to obtain the lids at a market price; and, finally, that ABB was charging a price for the lids equivalent to 38 per cent of the total cost of a complete meter box and that ABB had dropped the price for a complete meter box, where it had not lowered its price for the lids. After an investigation, the BCA found that interim measures had to be imposed as ABB prima facie had abused its dominant position. In fact, it found that each of the earlier described practices constituted separate abuses. The interim measures imposed were that (1) ABB had to apply an April 2018 price reduction for Eandis also to other customers; (2) ABB must apply to the prices of the concerned lids the price reductions it would decide for electricity boxes or their components, regardless of the configuration in which they are ordered, and refrain from any not objectively justifiable price increase for these lids; and (3) ABB must commit to continue to process orders for lids according to the 'first in, first out' principle without distinguishing between the configurations in which they are ordered, including for lids that ABB uses itself for the production of electricity meter boxes.ii Trends, developments and strategies
The BCA has shown its willingness to adopt settlement decisions. It remains to be seen whether this trend will continue in 2019. Another interesting evolution to watch will be how the entry into force of the 2016 Leniency Guidelines will have an influence on the activities of the BCA and whether more leniency applications will be introduced.
Finally, decisions could be expected in the areas where dawn raids took place in the last three to four years.