On 21 August 2007 the Belgian Competition Council decided that the Association of Veterinarians ('Orde der dierenartsen'), of which membership is mandatory for anyone providing veterinary services in Belgium, infringed the Belgian and European prohibition on cartels by imposing minimum fees for veterinary services.
The Council held that the Association intended to coordinate the pricing behaviour of its members with the purpose of limiting competition between veterinarians, and this at least since the entry into force of the Belgian Competition Act in 1993, until 2001. Even though in 1998 the Association removed the provisions imposing minimum fees from its Disciplinary Code, it continued disciplinary proceedings against veterinarians that had not applied the minimum fees. The Council considered that the Association therefore infringed both Article 2 of the Belgian Competition Act and Article 81 EC, since the minimum fees affected all veterinarians providing services in Belgium and were therefore likely to affect trade between the EU member states.
The Council declined to impose a fine for the infringement, referring to and expanding on the reasons it had put forward in its decision of 29 January 2007 when it found that another trade association, Fedoba, had infringed the Belgian and European cartel prohibitions without imposing a fine. The Council stated that Article 36 of the previous Belgian Competition Act, applicable at the time of the infringement, did not allow for the imposition of fines on associations of undertakings. Even though the new Belgian Competition Act (already in force at the time of the decision) abolished this exception, the Council considered that the principle of legality and the prohibition on the retroactive application of the law prevented it from imposing a fine for the infringement of Article 2 of the Belgian Competition Act.
In addition, the Council found that, as to the application of Article 81 EC, the competition authorities of the member states have to apply national procedural rules and penalties, except if their application would impair the effectiveness of Community law. The Council recognized that the lack of a possibility to fine associations of companies under the old law may not have been in line with the principle of effectiveness, but considered that it could only disregard the exception if it would be forced to do so by Community law. The Council then went on to state that, in any event, it was inappropriate to impose a fine for the following reasons: the Association had removed the provisions on minimum fees already in 1998 (before the start of the investigation) from its Disciplinary Code; during part of the infringement there may have been uncertainty about the legality of minimum fees imposed by professional associations (effectively until the European Commission’s decision on minimum fees of the Belgian Association of Architects in 2004); and the investigation lasted longer than strictly needed. However, the Council ordered the Association to send all its members a copy of the decision, within one month of notice.