By decision of 27 September 2012 (decision No. 2012-P/K-23), the Competition Council annulled a decision by the Belgian Competition Prosecutor, because it violates the duty to state reasons.
On 4 November 2009, a Belgian forklift wholesaler (Duma NV) and a forklift assembling company (G.S. International) filed a complaint of anti-competitive conduct against Mitsubishi before the Belgian competition authority. Some two years later, however, the complaint was dismissed by the Belgian Competition Prosecutor pursuant to Article 45§2 of the Act on the Protection of Economic Competition, which inter alia permits the College of Competition Prosecutors to reject a complaint ‘by a reasoned decision according to the available resources and the priorities which are set.’ The contested decision sets out a number of criteria that steer the College’s priorities, notably the economic importance of the file, consumer interest, the gravity of the infringement, the feasibility of the investigation and the international context.
The Competition Council asserts that, even in case a complaint is dismissed by reference to the priority policy of the College of Competition Prosecutors, the Prosecutor is obliged to make explicit the factual or legal elements that have played a role in this decision so as to allow for a degree of scrutiny. The Council acknowledges that the reasons can be made explicit in full in the decision in which the complaint is rejected, or they can be provided in combination with an overview of the investigative steps undertaken. However, in the present case neither the decision nor the file contained any indications that would have offered insight into the reasons of the Prosecutor. The Council moreover insists that the Prosecutor should have identified which of the listed criteria (the economic importance of the file, consumer interest, the gravity of the infringement, the feasibility of the investigation and the international context) were decisive in this case. While the Court implicitly accepts that the complaint could have been rejected by reference to the fact that a case was simultaneously brought before and decided by a civil court, it notes that this element is not mentioned in the decision. In conclusion, the Prosecutor’s decision is annulled and the case is referred back to the College of Competition Prosecutors.