On 5 February 2009, the Liège Court of Appeal ruled that a collective refusal to supply by a number of bottled medical oxygen suppliers infringed the cartel prohibition.
Oxycure, a supplier of oxygen concentrators, was faced with a collective refusal of supply by producers of bottled medical oxygen, which it needed in order to provide a full service to its clients. This refusal had been preceded by a request for a cease and desist order before the President of the Commercial Court of Namur against Oxycure. The action was launched by several bottled medical oxygen suppliers, supported by a drug industry trade association, and its purpose was to prohibit Oxycure from delivering reserve bottles. The producers had argued that, under Belgian law, Oxycure did not have the necessary authorisation to deliver the reserve bottles and also that its advertising was misleading.
Oxycure introduced a counterclaim before the Namur Court, alleging that the producers' refusal to supply infringed the cartel prohibition laid down in Article 2 of the Belgian Competition Act or, alternatively, that the bottled medical oxygen suppliers made abusive use of their rights, constituting an unfair commercial practice. The President of the Commercial Court ruled that the refusal to supply constituted an unfair commercial practice but that there was insufficient proof of an infringement of the competition rules.
On appeal, Oxycure argued that the suppliers' refusal infringed Belgian competition law. In its judgment, the Court of Appeal stated that the bottled medical oxygen suppliers, which represent almost the entire Belgian market for oxygen products and which were represented by the same legal counsel, had adopted the same negative approach towards Oxycure. The Court of Appeal also found that the letters sent to Oxycure by the various suppliers were perhaps not identical but at the very least convergent, with a common objective of preventing Oxycure from obtaining medical oxygen. On this basis, the Court of Appeal ruled that the suppliers' refusal should be considered as a concerted practice violating Article 2 of the Belgian Competition Act.