On 19 December 2014, the Belgian Competition Authority ("BCA") dismissed the claim that energy suppliers had exchanged information or engaged in prohibited concerted practices on green certificates (Case ABC-2014-I/O-25-AUD).
In 2011, the BCA investigated Belgian energy suppliers because the Flemish regulatory authority for electricity and natural gas ("VREG") noticed parallel behavior among a number of energy suppliers. According to the authority, there were indications that some players in the market made a (gentlemen’s) agreement on fixing selling prices of contributions to the green certificate obligations, violating the prohibition of anti-competitive agreements of Article IV 1. § 1 of the Code of Economic Law and Article 101 TFEU.
In Belgium, energy suppliers must buy annually a certain amount of green certificates in order to stimulate the use of renewable energy. One green certificate equals 1.000 Kilowatt hours of renewable energy, produced according to specific conditions. If the suppliers do not reach that target, they are required to pay a fine for each missing certificate.
The VREG noticed that several energy suppliers invoiced their customers a contribution based on the amount of possible fines instead of a contribution based on the actual price that was paid when buying the certificates. This latter price is lower than the possible fine, which means that the suppliers made a profit by using this method to calculate prices.
However, following an investigation, the BCA concluded that it could not prove any exchange of information about fixed selling prices. Moreover, the decision states that transparency on the energy market is high. Customers can simply take a look on the website of the distributors and compare prices and conditions offered by the suppliers. Also, suppliers have easy access to the commercial policies of a competitor, in particular regarding residential customers. The BCA also refers to the legislation as well as to the specific nature of the green certificate which is not a normal "sales product".
The BCA concluded that there are many possible justifications for this parallel practice in the energy market. Accordingly, there is no proof of the existence of anticompetitive agreements between the energy suppliers.