The competition authority found that the entities concerned had engaged in a concerted practice with a view to delaying the adoption of a number of regulatory instruments permitting the use of LMA (laitier moulu agrée) as a substitute for CEM III cement in the production of ready-mix concrete. In particular, it found that this concerted practice was intended to prevent the Dutch LMA producer Orcem entering the Belgian market.
The Brussels Court of Appeal's judgment first dismissed the procedural objections raised against the decision of the Belgian Competition Council. Despite the fact the procedure had been before the Council for a lengthy period of 7 years and 9 months, the Court noted that none of the claimants had provided specific arguments as to why this delay compromised their rights of defence (e.g. by identifying names of former staff members that had left the company and could no longer be contacted to give evidence). The Court also rejected the suggestion that the mere fact that the decision was not read out in a public hearing amounted to a breach of Article 149 of the Belgian Constitution and/or Article 6(1) European Convention on Human Rights. A challenge to the impartiality of the Competition Council was similarly dismissed.
However, on the merits of the case, the Court of Appeal overruled the Competition Council's decision that the concerted practice amounted to a restriction of competition by object. According to the Court, the Council failed to properly take into account the lobbying context in which the conversation took place. Referring to a previous judgment of the General Court of the EU, ECM Developments, the Court of Appeal stressed in particular that none of the relevant decision-making bodies were controlled by the cement producers. Furthermore, the participation of the cement producers in the consultative and decision-making process had taken place in an open, objective, transparent and non-discriminatory context. The Court of Appeal held that because the undertakings had not influenced the procedures to the extent of controlling and undermining them, they had not gone beyond permissible lobbying. Accordingly, the contested conduct had not taken place ‘on’ the market and could not give rise to a breach of competition law. In light hereof, the Court decided to annul the Council's decision, including the fines imposed therein.
This article was published in the Competition Law Newsletter of August 2016. Other articles in this newsletter:
- Court of Justice clarifies the legality of royalty payments in the event of revocation or non-infringement of the licensed patent
- General Court confirms fines imposed on the basis of economic continuity in maritime hose cartel
- European Commission imposes record cartel fine on truck manufacturers for price fixing
- European Commission deems support measures in favour of Dutch football clubs in line with State aid rules
- Dutch District Court ruled that parent companies cannot be held liable for damages arising from antitrust infringements committed by their subsidiaries
- ACM lowered fines in the pepper cartel case
- Dutch Supreme Court confirms the availability of a passing-on defence in antitrust damages litigation
- Brussels Court of Appeal rules that concerted lobbying efforts of cement producers do not breach competition law
- Belgian competition authority upholds licence refusal to football club White Star
Source: Competition Law Newsletter August 2016