Introduction

2023 began with the end of Jacques Steenbergen’s mandate as president of the Belgian Competition Authority (BCA) on 31 January 2023, after 15 years as the head of the BCA. Unfortunately, at the end of 2023 the new BCA president has still to be appointed as no agreement has been reached between the government’s coalition parties concerning his successor. However, the authority has been able to significantly increase its manpower and its formal and informal enforcement tools following the implementation of the ECN+ Directive in 2022 and the important increase in its budget. The Prosecutor’s office has been restructured and reinvigorated under the leadership of the new Prosecutor General, Damien Gerard, and has used all its enforcement tools, including for the first time its power to request ex officio interim measures. In particular, there have been notable actions taken in the telecommunications, pharmaceutical, agrifood and banking sectors. The BCA has also continued its “crusade” against infringing vertical agreements and practices.

Telecommunications sector

The telecommunications sector is undoubtedly one of the sectors in which the BCA has been particularly active during 2023.

Firstly, it assessed the compliance of a mobile infrastructure sharing agreement (ie, a “RAN-sharing agreement”) between Proximus and Orange under competition law after a competitor, Telenet, had brought a complaint against the joint venture (JV). The BCA concluded that this cooperation did not reveal any (potential) restriction of competition.

Second, the BCA looked at agreements related to the rollout of fiber-to-the-home. In 2022, Telenet Group Holding NV and Fluvius System Operator announced a JV to construct a data network for fiber rollout in Flanders and Brussels. They planned to establish a new infrastructure company (NetCo) to combine their fixed electronic communications networks. The BCA opened an investigation in June 2022 due to concerns about potential competition distortion. However, on 18 April 2023, the BCA closed its investigation after the parties committed to binding measures addressing the identified concerns. In May 2023, the European Commission also cleared the transaction under the EU Merger Regulation.

Despite this, the BCA will continue monitoring the implementation of measures and closely follow the fiber network rollout process, in particular examining agreements between telecom operators to ensure cost savings benefit end-users. In doing so, the BCA stated that it will collaborate with the Belgian Institute for Post and Telecommunications (BIPT) and will pay attention to the conditions outlined in the BIPT Communication issued on 10 October 2023 in this regard.

Finally, one of the most notable BCA cases this year concerned the Belgian Towercast case. Following the ECJ’s landmark Towercast judgment, in which the ECJ confirmed and clarified that the prohibition of abuse of dominance under article 102 of the Treaty on the Functioning of the European Union (TFEU) applies to mergers that are not subject to prior merger control, the BCA opened ex officio proceedings in March 2023 regarding Proximus’ takeover of EDPnet’s assets within the framework of judicial reorganisation proceedings.

EDPnet was the main alternative telecommunications operator providing wholesale and retail broadband internet access services at a national level in Belgium. EDPnet experienced financial difficulties following which its assets were transferred to Proximus in the context of judicial reorganisation proceedings before the Ghent Enterprise Court. Proximus had offered the highest bid price in the reorganisation proceedings. Citymesh, the upcoming fourth telecommunications operator in Belgium, who is currently developing its fixed and mobile services for broadband internet access together with its Romanian partner, DIGI, also issued a bid for EDPnet’s assets.

The BIPT brought serious indications of substantial obstacles to competition to the BCA’s attention. So, the BCA opened proceedings to determine whether Proximus’ acquisition of EDPnet’s assets constituted an infringement of article 102 TFEU and its Belgian equivalent, article IV.2 CEL. On 12 April 2023, for the first time in the BCA’s history, the BCA’s Prosecutor General also requested, on his own initiative, that interim measures be imposed on Proximus. These measures were subsequently adopted in the BCA’s Competition College’s decision of 21 June 2023 holding that the Prosecutor General had prima facie demonstrated the existence of an abuse of a dominant position on Proximus’ part resulting from EDPnet’s takeover, due to the EDPnet’s elimination as an independent alternative operator active on both the wholesale and retail broadband internet markets.

On 6 November 2023, the BCA was informed of the conclusion and completion of an agreement under which Proximus divested EDPnet Belgium to Citymesh. Further to this agreement, the BCA decided to terminate its abuse of dominance proceedings concerning Proximus’ takeover of EDPnet’s assets (see here for our update on this case).

Pharmaceutical sector

The BCA announced in its note on its enforcement priorities for 2023 that “the pharmaceutical sector remains a priority for the BCA, as it is in other European countries.” Given the significant number of cases in the pharma sector in 2023, the BCA has stuck to that resolution. Interesting developments have occurred in the typical fields of restrictive practices (both cartel infringements and abuse of dominance), concentrations, and regarding abuse of economic dependence.

Restrictive practices

On 23 January 2023, the BCA imposed a fine of €2,782,808 on Novartis Pharma SA and Novartis AG for abuse of collective dominance resulting from disseminating misleading information regarding risks concerning the off-label use of its competitor Roche’s cheaper medicine, Avastin, to treat the ophthalmologic disease, AMD, instead of the on-label use of Novartis’ more expensive medicine, Lucentis.

In 2023, the BCA further continued its first ever hybrid settlement case. Already in a 2022 settlement decision, the BCA’s Prosecution Service had imposed fines of €29.8 million on two pharmaceutical wholesalers, Febelco CV and Pharma Belgium-Belmedis SA for cartel infringements regarding “transfer orders” and influenza vaccines (see our update on this case here). A third company, CERP, that had not entered the settlement decision, was now penalised by the Competition College with a fine of €778,777.93 for its participation in the infringement regarding the “transfer orders” model. Under this model, wholesalers execute and distribute orders placed by pharmacists for which preferential terms have been offered directly by pharmaceutical companies. The alleged cartelists would have agreed to apply the same commercial conditions towards the pharmaceutical laboratories for the distribution of pharmaceutical products via the transfer orders system.

Concentrations

A lot of uncertainty about the applicability of the notification requirement for hospital mergers has existed in Belgium since a legislative amendment in 2019 obliged hospitals to establish and be part of a so-called loco-regional hospital network. A BCA 2020 note, which stressed the applicability of the merger rules to the creation of regional clinical hospital networks meeting the normal notification thresholds, was subsequently overturned by another legislative act in 2021 that exempted any establishment of loco-regional hospital networks from the notification obligation. The BCA considered this uncertainty surrounding the notification requirement and therefore partially lifted the standstill obligation in a decision of 28 June 2023 regarding a hospital concentration. Furthermore, the BCA issued a communication on 14 July 2023 clarifying that the 2021 exemption does not extend to merger and acquisition (M&A) transactions between hospitals that are independent of the creation of a loco-regional hospital network or a change in the composition, even if the hospitals concerned are already part of the same hospital network. Given the very specific nature of the hospital sector, on 18 October 2023, the BCA published for the first time a sector-specific analytical framework that it will use to assess notifiable M&A transactions in the hospital sector, focusing on the transaction’s impact on the types and quality of care offered by the hospitals, the geographic scope of their patients, their costs, revenues and rates and their (para)medical staff. An amendment of the Belgian competition rules scheduled for 2024 would further address the issue of hospital mergers (for more on this topic, see our update here).

In the pharmaceutical distribution sector, on 8 November 2023, the BCA approved Pannoc Chemie NV’s acquisition by ACE Pharmaceuticals Belgium BV and Febelco CV, subject to conditions. According to the BCA, this vertical concentration would risk giving rise to:

  • input foreclosure (the availability of the raw materials produced by Pannoc for competing seller-distributors, competing full-line wholesaler-distributors and pharmacists who do not purchase from Febelco);
  • customer foreclosure (the availability of Febelco as a sales channel to competing seller-distributors and competing producers); and
  • the exchange of commercially-sensitive information.

Therefore, the concentration was only allowed after the acceptance of certain conditions limiting those risks.

Abuse of economic dependence

On 20 March 2023, the BCA published its amicus curiae made in Tunstall’s injunction action brought before the Business Court of Brussels against Victrix in the telehealth sector. While, according to the BCA’s amicus curiae, economic dependence can only occur in the case of a contractual relationship between the companies concerned, the Business Court decided this was not necessary. The Business Court held that Tunstall abused Victrix’s economic dependence by discriminatorily refusing to grant Victrix a license to its patented technology for telemonitoring solutions, while Tunstall had granted a license to several of Victrix’s rivals, and therefore ordered it to grant one to Victrix too. An appeal before the Belgian Supreme Court is pending.

Agrifood sector

The BCA has also focused on the agricultural food sector and has assessed various types of practices in this sector.

In February 2023, the BCA issued an informal view (a type of soft law) regarding the code of conduct of the Supply Chain Initiative. In particular, this concerned assessing compliance of a commitment that the contracting parties undertake not to contractually exclude or de facto exclude the unforeseeability doctrine with competition law.

Secondly, the BCA has been one of the few European NCAs to assess environmental social governance (ESG) initiatives under competition rules in recent years. In 2023, the BCA assessed a proposed “fair wages” initiative in the banana sector between IDH Transforming Markets and five major retailers in Belgium (Colruyt Group, Delhaize, Aldi, Lidl Belgium and Luxemburg and Jumbo) in light of competition law. Although it stated that sustainability initiatives consisting of partnerships between companies can require a complex balancing of interests between the environmental and sustainability benefits of the cooperation and their effects on competition, the BCA considered that the sustainability initiative at hand did not raise competition concerns.

In a judgment of 14 June 2023, the Market Court (which is a section of the Brussels Court of Appeal) upheld the BCA’s decision in which the BCA had approved Intermarché’s acquisition of the Mestdagh retail chain. Carrefour had filed for both the suspension and the annulment of the BCA’s clearance decision and applied for interim measures. Carrefour considered, among other things, that the concentration could be problematic, in particular in certain catchment areas that Carrefour considered to be affected markets and would increase prices in these areas. On 23 December 2022 and 15 March 2023, the Market Court dismissed Carrefour’s claims and ruled that the BCA’s decision could be implemented, and that Carrefour had all the useful information to defend its position before the Court. On 14 June 2023, the Market Court also rejected all of Carrefour’s claims for annulment on the merits and confirmed the BCA’s decision authorising the envisaged concentration between Intermarché and Mestdagh (for more information, see our update on this case here).

Finally, the BCA has very recently published a press release announcing that it has opened a formal investigation into a possible abuse of economic dependence in the agricultural sector, after a preliminary investigation had revealed serious indications of a possible infringement. The prohibition on abuses of economic dependence was introduced in Belgian law in 2020 and although it can be enforced both by the civil courts (private enforcement) and the BCA (public enforcement), so far, all the decisions involving an alleged abuse of economic dependence have stemmed from the civil courts.

Banking sector

The BCA has continued its investigation into the so-called “Batopin” cooperation between Belgium’s four largest banks to pool their ATMs into a single network, given the increasing use of electronic payments and the ensuing decreasing number of cash withdrawals. Several politicians and consumer organisations have voiced concerns about the project. The BCA is investigating the Batopin project’s potential impact on the quality of cash distribution and deposit services and the competition between retail banking service providers in Belgium.

The BCA has also investigated the banking sector’s alleged “gentlemen’s agreement” not to compete with the State treasury’s bonds, which was reported in the media but denied by the banks themselves. The investigation has raised a series of questions that converge with the concerns about the functioning of the banking sector that the Minister for Economy and Labour referred to the BCA. The Prosecution Service decided to suspend its investigation to focus its resources on the report requested by the Minister, which was issued on 31 October 2023. In its advice, the BCA observed that the retail banking market in Belgium is historically highly concentrated and has the characteristics of an oligopoly dominated by four major players, which facilitates coordination. The major banks tend moreover to offer similar consumer products on broadly similar commercial terms and their average return on savings offered would systematically have been lower than the return on savings offered by other banks. The advice identifies several obstacles to the competitive dynamics within the Belgian retail bank market and suggests several ways to stimulate competition.

Verticals

Following the general trend observed by many NCAs in recent years, the BCA too has continued its assessment of restrictions in vertical agreements.

The most recent notable case concerns the fine of €859,310 reimposed on here three undertakings of the Caudalie group for imposing minimum prices and limiting Caudalie’s distributors’ active and passive sales. The BCA had already imposed the same fine on Caudalie in 2021, but the Market Court had quashed its decision on appeal, ruling that the BCA illegally imposed a fine on Caudalie while simultaneously accepting and making binding the commitments offered by the latter during the investigation. The case was referred back to the BCA, which reimposed the same fine of €859,310, without further commitments this time (for more information, see our update on this case).

On 13 September 2023, the Antwerp Court of Appeal made a request for a preliminary ruling to the ECJ regarding the VBER’s application as part of a case involving exclusive cheese sales in Belgium. The Appeal Court is seeking clarification on when an exclusive distribution agreement can be recognised and whether a supplier must explicitly tell all its distributors they cannot sell into the territory reserved to an exclusive distributor. The BCA was asked to issue an amicus curiae in the case at hand. The BCA stated that the conditions of parallel imposition must be respected as one of the three cumulative conditions for imposing active sales restrictions under the VBER. This requires the supplier (in this case, Cono) to protect its exclusive distributor (Beevers) against active sales in the exclusively allocated territory made by the supplier’s other distributors. Following the BCA’s opinion, the Appeal Court has asked the ECJ whether there should be an explicit restriction in the agreement, or whether the fact that other distributors refrain from active sales into the relevant territory is sufficient to fulfill the VBER conditions. The Appeal Court has also asked whether the supplier must obtain confirmation from all distributors, even if they have no plans to enter the territory in question, that they will not actively sell the product.

Finally, on 13 December 2023, the BCA’s Investigation and Prosecution Service adopted a settlement decision in which it imposed a fine on Le Creuset Benelux of €490,112 for having implemented a resale price maintenance policy towards its distributors.

Comment

It is hoped that in 2024, finally, a new BCA president will be appointed to further enhance its functioning.

It is expected that following the significant increase in manpower, which now reaches around 80 FETs, the BCA will continue its path of vigorous enforcement using all its formal and informal enforcement tools. The BCA has already started several interesting investigations that will continue, and hopefully will be decided upon, in 2024. For example, on 3 July 2023, the BCA issued a statement of objections to Ladbrokes and PMU concerning agreements on the distribution of betting products in Belgium that might have restricted competition between those undertakings in the Belgian market. The BCA also issued, on 6 July 2023, a statement of objections to international players in private security services – Securitas, G4S, and Series – alleging they have participated in cartel practices that include applying minimum prices determined within the sectoral trade association, exchanging information, coordinating participation in tender procedures, and having reciprocal non-solicitation agreements for employees. Also, the Tobacco hub-and-spoke cartel case will have to be reconsidered by the BCA’s Competition College following the Brussels Market Court’s partial annulment on 15 February 2023 of the Competition College’s first decision in this case of 22 April 2022.

Although the number of cases relating to abuses of economic dependence before the courts has increased, the BCA has only very recently started its first formal investigation in an abuse of economic dependence case and the results of this case and the interpretation of this new prohibition by the BCA are eagerly awaited.

Finally, in 2023 the BCA reviewed many mergers and the BCA showed that it will make use of its power to also screen mergers falling below the merger control thresholds under the abuse of dominance rules, based on the Towercast ruling. Combined with the possible referrals to the European Commission based on article 22 of the European Merger Control Regulation and the new rules on foreign direct investment screening that came into force in Belgium on 1 July 2023, a careful review of any intended mergers and acquisitions under the various regulatory mechanisms will be required.

For further information on this topic please contact Carmen Verdonck, Beatrijs Gielen or Nina Methens.