Belgian Competition Authority publishes 2018 annual report

On 17 June 2019, the Belgian Competition Authority ("BCA") published its 2018 annual report, highlighting its main areas of activity and future enforcement priorities. The report shows a clear increase in the BCA's merger control activity, which in recent years has tended to take up most of the BCA's limited resources. The BCA also continues to handle a number of antitrust investigations and requests for interim measures. 

Merger control

The BCA's 2018 annual report (available in French and Dutch) shows a clear increase in the BCA's merger control activity:

• The BCA received 36 merger notifications in 2018, a 20% increase compared to 2017.
• The BCA issued as many clearance decisions. 28 decisions were taken using the simplified procedure, and no less than nine decisions in first phase investigations. Only two decisions were subject to conditions, i.e. Kinepolis and Volvo/Kant.

The Kinepolis case concerns the lifting of some of the conditions imposed in 1997 for the approval of the merger that created the Kinepolis cinema group. Following the annulment of an earlier decision for lack of motivation, the BCA adopted a new decision in 2018 that was again successfully appealed by competing cinema chains. The BCA has since then adopted a new decision on 25 March 2019, which is currently again under appeal. 

The Volvo/Kant merger, on the other hand, concerned the acquisition by Volvo of a number of garages servicing Volvo-branded trucks and busses. The BCA approved the acquisition subject to conditions, including a commitment by Volvo to appoint a new repairer in a specific area to ensure that customers in that area could still choose between a sufficient number of repairers.

Antitrust

The BCA did not adopt any antitrust decisions imposing a fine in 2018, although the Prosecution Service submitted one draft decision to the Competition College in the case involving the Belgian pharmacists association, which has been condemned in the meantime for seeking to hinder the development of the innovative (para)pharmacy chain MediCare-Market.

Two antitrust investigations were closed, one on the basis of commitments offered by the investigated party (FEI) and the other on the basis of a lack of evidence and resources (Floragro).  

The FEI case concerned the rules of the international horse riding association on the authorisation of show jumping events. The BCA had reached the preliminary view that the FEI rules infringed EU and Belgian competition law on account of the lack of transparency of the authorisation process, the capacity given to competing event organisers to object to the organisation of new events, and the severe sanctions imposed on athletes participating in unauthorised events. To address the BCA's concerns, the FEI offered to amend its rules and establish a more objective, transparent and non-discriminatory authorisation process. The BCA closed its investigation on this basis.

The BCA also decided on four requests for interim measures. Two of those requests related to the FEI investigation but were, ultimately, rejected because there was no sufficient prima facie evidence supporting the alleged infringements. In TECO/ABB, however, which concerned ABB's practice of selling products over which it had acquired a manufacturing monopoly at different prices to different parties, the BCA reached the preliminary view that this practice may constitute unlawful price discrimination. It therefore granted interim measures to the claimant.

2019 enforcement priorities

The report also identifies the BCA's enforcement priorities in 2019. In line with last year, the BCA intends to exert particular scrutiny in the following sectors: telecoms, retail distribution including relationships with suppliers, professional services, public contracts, pharmaceuticals and logistics.

With thanks to Antoine Accarain of Ashurst for his contribution.