Restrictive Practices

Are considered as restrictive practices,

• all agreements between undertakings,
• all decisions of associations of undertakings and
• all concerted practices,

the object or consequence of which is to prevent, restrict or distort significantly competition in the Belgian market concerned or in a substantial part of that market are prohibited (art. 2 § 1ter of the act on the protection of economic competition consolidated on September 15^th 2006 hereafter “the act”).

• Is also considered as a restrictive practice the abuse of a dominant position in the relevant Belgian market or in a substantial part of it by one or more undertakings.

The fundamentals

Community rules of competition

The investigation

The request for interim measures

Fines

Leniency

Appeal

The fundamentals

• Pursuant to regulation (EC) 1/2003 (PDF, 205.78 Kb)  the Belgian Act introduces a system of legal exception, where, the notification system, with the intention to obtain a negative clearance or exemption, is lifted.
• Restrictive practices are prohibited by the articles 2 and 3 of the Act and by the articles 101 and 102 of the TFEU. Restrictive agreements infringing article 2 paragraph 1 of the Act or article 101 paragraph 1 of the TFEU are ipso jure invalid( art.2 paragraph 2 of the Act and article 101 paragraph 2 of the TFEU).
• The prohibition shall not apply if the conditions of article 2 paragraph 3 of the act or the conditions of article 101 paragraph 3 of the TFEU are met.

Abuses of a dominant position are prohibited.

EU rules of competition

Restrictive practices which can affect trade between member states must be tested by the competition authorities and the national courts of law against articles 101 and 102 of the TFEU.

The investigation

• An investigation can be opened in cases covered by the act (art. 44 of the act)
• See simplified table  to have an overview of the procedure concerning restrictive practices.

We recommend to contact beforehand the registry of the Council of Competition for persons who like to file a complaint.

The request for interim measures

See article 62 of the act .

Fines

The Competition Council can impose fines.

• Undertakings can be fined of up to 10% of the turnover, for infringements of the articles 2 or 3 of the Act
• Undertakings can be fined of up to 5% of the average daily turnover, for non-compliance with prohibitive decisions or decisions of provisional authorisation;
• Undertakings can be fined of up to 1% of the turnover for not notifying a merger that falls within the scope of the Belgian Competition Act;
• Persons, undertakings or associations of undertakings can be fined up to 1% of their turnover for not being co-operative during the inquiry (art. 63 and the following of the act )

Leniency

An undertaking or associations of undertakings who have taken part in a cartel can obtain

• a total or
• partial exemption from financial sanctions

if that undertaking has contributed to prove the existence of these illegal practices and the identification of the parties responsible for that practice, in particular

• by providing information which the Competition Authority did not previously have,
• by providing the proof of a practice prohibited by article 2 and whose existence had not yet been established,
• or by recognising the existence of the prohibited practice.

The Council shall adopt to that end a leniency decision, which shall specify the conditions applying to any proposed exemption.

When the decision is taken pursuant to this article, the chamber hearing the case may, if the conditions specified in the leniency decision have been respected, grant an exemption from financial sanctions in proportion to the contribution to establishing the infringement (art. 49 of the act).

For further information concerning leniency please take contact with the registry of the Council of Competition.

Appeal

• The decisions of the Competition Council and of its president may be appealed against before the Brussels Court of Appeal.
• An appeal does not suspend the decisions of the Council, or those of its president. Under certain conditions the Court of Appeal can suspend the execution of a decision.
• The undertakings concerned, the defendant and the minister of economy can lodge this appeal within 30 days after notification of the decision of the Competition Council.

The same goes for the third parties who can demonstrate some interest and are asked to be heard by the Competition Council (art 75 and the following of the act)

More about restrictive practices

• Legislation 
• Proceedings 
• Leniency 
• Template  (anti cartel enforcement)