On 26 August 2010 the Belgian Competition Council ruled that the Professional Institute of Real Estate Agents (BIV) had engaged in anticompetitive practices by recommending minimum prices to member real estate agents.
Between 1996 and 2004, the BIV recommended minimum prices for the different services offered by its members (for sales, leases and administration). According to the BIV, the practice of price recommendations was set up in response to demand from consumers who wanted a point of reference with respect to prices for real estate services. The practice was abandoned in 2004, after the European Commission concluded that the scale of recommended minimum fees of the Belgian Architects Association was in breach of the EU competition rules (see Decision of the European Commission of 24 June 2004, Barême d'honoraires de l'Ordre des Architectes belges)
A first investigation into the BIV practices started in 2001, but the proceedings were abandoned in 2006 as the matter was viewed as a low priority. However, the BIV case was reopened in May 2008, after the College of Competition Prosecutors were informed that a “low budget” real estate agency had had its BIV membership suspended for having charged prices that were too low to be able to guarantee the quality of the services that real estate agents should offer. Note that the Competition Council however concluded that there was no proof that the BIV suspended the real estate agent for not complying with the minimum tariffs..
In its decision, the Competition Council rejected the BIV’s argument that the Institute should be considered as a public body and therefore exempt from the competition rules. Although the law imposes a duty on the BIV to preserve the dignity of the profession, there was no regulation or law which required the BIV to recommend minimum prices. The BIV was considered to be an association of undertakings, the decisions of which are subject to Belgian and European competition rules.
The Council acknowledged that the BIV never imposed binding tariffs on its members. However, the Council concluded that in practice, the formally non-binding price recommendations had a normative effect and the objective of restricting competition among real estate agents. The facts of the case led the Council to this conclusion, for example the terminology used by the BIV, the public accessibility of the tariffs, the fact that tariffs stated that they had to be respected, etc.
Although the BIV is found to have infringed the Belgian Competition Act, the Council did not consider it appropriate to impose a fine, but instead required the BIV to notify all of its members of the decision by publication on its website.