Belgium: Belgian Competition Authority Adopts Its First Settlement Decision In Supermarkets Cartel Case

On 22 June 2015, the College of Competition Prosecutors (Auditoraat / Auditorat) of the Belgian Competition Authority ("BCA") adopted its very first settlement decision in a cartel case involving 18 retailers and suppliers of drugstore, perfumery and hygiene products ("DPH").

The BCA found that retailers had indirectly coordinated price increases of specific DPH products in Belgium by exchanging information with other retailers via the relevant suppliers. The BCA considered this to be contrary to Article IV.1 of the Code of Economic Law and Article 101 of the Treaty on the Functioning of the European Union.  According to the BCA, "the core of the infringement was at retail level, with suppliers acting as intermediaries and facilitators, each of them exclusively for their own products". The BCA found that no direct communication had taken place between retailers and that no communication whatsoever had occurred between suppliers.

The investigation had started in late 2006 when a supplier, Colgate-Palmolive, sought immunity from fines under the Belgian leniency programme. The BCA then carried out inspections at the premises of retailers Carrefour, Colruyt, Delhaize and Intermarché in April 2007 and uncovered further evidence, leading to the prosecution of seven retailers and 11 suppliers (See VBB on Belgian Business Law, Volume 2012, No. 10, p. 2, available at www.vbb.com).

This case took an unexpected turn in late 2013 with the entry into force of the new Code of Economic Law. The new Code enabled undertakings to challenge the legality of investigative measures before the adoption of a final decision on the merits. As a result, many of the companies involved challenged the legality of the 2007 inspections before the Brussels Court of Appeal (See VBB on Belgian Business Law, Volume 2014, No. 4, p. 7, available at www.vbb.com). However, the College of Competition Prosecutors made use of the possibility included in the new Code to initiate settlement proceedings. All 18 undertakings agreed to settle, which means that they acknowledged their involvement in the infringement and accepted their fine in return for a shorter procedure and a 10% fine reduction.

Notwithstanding this fine reduction, the total fine imposed by the BCA was a record of EUR 174 million, including EUR 36 million on retailer Carrefour, EUR 31 million on retailer Colruyt and EUR 29 million on supplier Procter & Gamble.

Since all parties agreed to settle, the BCA's decision cannot be appealed. In addition, as a condition for settling the case, the BCA required all undertakings that had challenged the legality of the inspections to withdraw their appeals and interventions in these appeals.

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