The Decision of the BIPT of 11 August 2006 regarding fixed telephony required Belgacom to fully pass on the decreases of mobile termination tariffs to its private and non-private fixed line customers, and introduced a monthly reporting obligation on Belgacom, in order to ensure compliance with this. On 18 October 2007, the BIPT served notice on Belgacom for non-compliance with the Decision of 11 August 2006 and it urged Belgacom to fully pass on the decrease of the mobile termination tariffs to its clients before 2 January 2008 and to hand over the documents to prove this. On 12 June 2008, the BIPT issued a Draft Decision stating that Belgacom did not meet the conditions put forward in the notice of 18 October 2007 and that it should therefore be fined € 8,240,000 Following further correspondence with Belgacom on the substance of the matter and the amount of the fine, the BIPT issued its final Decision on 25 July 2008, fining Belgacom € 3,090,000.
Belgacom had argued that the BIPT’s Draft decision of 12 June 2008 was based on wrong information and that the parameters used to determine whether and to what extent the decreases of mobile termination tariffs were passed on were insufficient, since elements such as inflation and promotions had not been taken into account. The BIPT responded by pointing out that Belgacom had been in charge of monthly reporting and could have referred to these elements previously, including by providing the data to prove it. Nevertheless, the BIPT agreed that some of the elements put forward by Belgacom such as inflation and promotions could indeed have a useful impact on the calculation and therefore decided to integrate those elements in its calculation. However, even after such recalculation the BIPT considered that Belgacom still did not pass on the decreases of mobile termination tariffs in full and that it therefore had not fulfilled the requirements of the notice of 18 October 2007 and should be fined.
In order to assess the seriousness of the infringement, the BIPT referred to the following factors: (i) Belgacom’s customers had paid too much compared to what they should have been paying; (ii) Belgacom, as a result, maintained a better financial situation than its two main mobile phone competitors (Mobistar and Base); (iii) Belgacom had enriched itself by increasing its margins; (iv) the infringement had an extensive duration; and (v) contrary to what Belgacom claimed, it could not rely on any ignorance as to what was expected of it.
The BIPT also took a number of aggravating circumstances into account. There was a precedent as Belgacom had been six months late in decreasing its mobile termination rates as required by the BIPT’s decision of 11 August 2006 in relation to mobile termination rates and Belgacom had strong market power on the wholesale and retail markets. However there were also attenuating circumstances such as the fact that Belgacom had indeed passed on a large part of the decreases in mobile termination tariffs to its customers and that by July 2008, before the final decision of the BIPT, it passed on the full 100%. As a result, Belgacom had finally met the conditions put forward in the notice of 18 October 2007 and the BIPT considered it was no longer necessary anymore to give the administrative fine a further deterrent effect and on the basis of these considerations, fined Belgacom for the amount of € 3,090,000.