On 20 May 2010 the Belgian Competition Council issued a decision finding that four steel plate radiator companies had coordinated their behaviour on the Belgian market by exchanging information relating to their gross wholesale prices. It imposed a fine totalling 3,539,527 Euros. The decision demonstrates the commitment of the Belgian Competition Authority and the Competition Prosecutors to target serious infringements of competition law, but also the willingness of the Competition Council to scrutinize the evidence before it and to ensure that the rights of defence of the companies involved are upheld.
The investigation by the Belgian Competition Authority into the restrictive practices in the radiator sector in Belgium was the result of leniency applications (in 2004 and 2006 respectively) from two of the companies involved. On 7 May 2009 the Prosecutor in charge of the case issued a report of the findings of the investigation to the Competition Council.
In its decision, the Council first dealt with a number of procedural objections raised during the proceedings. The Council rejected the arguments that the case was time-barred, thereby reiterating previous rulings that in the case of continuous infringements the limitation period of the Belgian Competition Act only starts running when the infringement has come to an end. One of the undertakings under investigation also argued that the undertakings under investigation should have had access to all the documents to which the Council had access and not merely to redacted versions of certain documents from which business secrets and other confidential information had been removed. According to the Council, the use of such redacted documents was acceptable, as it did not infringe on the rights of defence of the undertakings involved. Finally, the Council rejected the argument that the Belgian Competition Authority did not have the power to request the telephone invoices of the key persons involved in the infringement and that these invoices could not be used as evidence to establish the infringement. The Council thereby endorsed the Belgian Competition Authority’s existing practice of requesting such invoices, which played a key role in the Authority’s investigations.
As to the substance of the infringement, the Council considered in the decision that there was sufficient proof of a single and continuous infringement aimed at coordinating the commercial behaviour of the undertakings concerned. Through multilateral and bilateral contacts, the radiator companies involved exchanged information which created transparency as to (increases in) the gross wholesale prices they would charge. The Council considered this to constitute a restriction of competition by object, even though increases of the gross wholesale prices may not always have been reflected directly in the prices charged to end-users.
In its report, the Prosecutor had alleged that the infringement had lasted from 1995 until 2006 but the Council ruled that there was not sufficient evidence to establish an infringement prior to 2003. Consequently, only the period from 2003 to 2006 was retained to determine the fines for the companies involved.
No fine was imposed on the first leniency applicant, Masco. The second leniency applicant, Quinn, was awarded a reduction of its fine of 50%. Radson, which had not made a leniency application, nevertheless saw its fine reduced by 15% because of its cooperation with the investigation outside of the leniency notice. The fourth company involved, Caradon, did not benefit from any reduction. The Council did not accept that there were any other circumstances that should be taken into account in imposing its fines: the difficult market circumstances in the steel plate radiator sector, the economic crisis and the existence of a compliance programme, were all rejected as mitigating factors.