On 22 January 2015, the Belgian Supreme Court (Hof van Cassatie / Cour de cassation) partially set aside a judgment of the Brussels Court of Appeal on the limitation period applicable to investigative measures in competition cases.
The contested judgment was adopted in the framework of a dispute between the Brussels Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la concurrence) ("BCA") and the incumbent Belgian telecommunications company, Belgacom. Belgacom was accused by competing mobile telecommunications operators, KPN (parent company of Base) and Mobistar, of abusing its dominant position on the broadband market. Further to these complaints, the former competition authority (replaced by the BCA in 2013) inspected Belgacom's premises on 12 and 13 October 2010. Belgacom subsequently appealed a number of procedural decisions made by the College of Prosecutors (Auditoraat / Auditorat) of the former competition authority before the Brussels Court of Appeal. After obtaining a preliminary ruling from the Belgian Constitutional Court on some of the issues (See, VBB on Belgian Business Law, Volume 2011, No. 12, p. 2, available at www.vbb.com), the Brussels Court of Appeal found in favour of Belgacom and, in a landmark judgment of 5 March 2013, recognised legal professional privilege ("LPP") for communications of in-house lawyers (See, VBB on Belgian Business Law, Volume 2013, No. 3, p. 2, available at www.vbb.com). The College of Prosecutors and the BCA appealed this judgment to the Supreme Court but no longer questioned LPP for in-house counsel.
The Supreme Court dismissed most of the arguments put forward by the appellants. In particular, the Supreme Court held that the Court of Appeal was right to have found Belgacom's appeals on procedural decisions admissible, including decisions on the use of languages in the administrative procedure and the confidentiality of documents seized, despite claims by the BCA that these appeals should have been brought before the former Competition Council (Raad van mededinging / Conseil de la concurrence) and not the civil courts. The Supreme Court also rejected various claims made by the BCA as regards the selection of data inspected during the dawn raids and considered to be within the scope of the investigation.
In contrast, the Supreme Court considered that the Court of Appeal had not responded to the BCA's argument that, pursuant to Article 88 of the former 2006 Competition Act, the College of Prosecutors was entitled to investigate facts which took place more than five years preceding the decision to open the investigation when the infringement was considered to be continuous or repeated.
The Supreme Court therefore quashed the appeal judgment on this ground and sent the relevant part of the case back to the Brussels Court of Appeal for further review.
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