On 27 May 2016, the Competition College
(Mededingingscollege / Collège de la
concurrence) of the Belgian Competition Authority
(Belgische Mededingingsautoriteit / Autorité
belge de la concurrence) ("BCA") adopted a
settlement decision against two SMEs, Group M and Group P (their
full names were not disclosed to protect the anonymity of their
owners), active in river cruise services.
The BCA started its investigation following a leniency
application filed in 2014 by two companies part of Group M (Les
Sarcelles SPRL and Les Bateaux Mouches Belgique SPRL), and by an
(unnamed) individual. After having received a request for
information from the BCA in 2015, three companies of Group P
(Dinant Evasion SA, Dinant Croisières SPRL and Compagnie des
Bateaux de Dinant SPRL), as well as a further individual, also
applied for leniency. All the parties later agreed to settle, which
implies that they acknowledged the existence of the infringement to
competition law and accepted to be fined in return for faster
proceedings and a 10% fine reduction.
The BCA found that Group M and Group P concluded two
anticompetitive market-sharing agreements. The first agreement, in
force from 18 December 1983 until 31 December 2013, provided for a
systematic coordination on prices, hiring and remuneration of the
staff, maintenance works, advertisement and commercial and
accountancy policy. This agreement also included the pooling and
sharing of means of production and revenues. The second agreement,
in force from 1 January 2014 until 31 December 2014, allocated the
markets between the parties through provisions granting exclusive
use of reaches and sharing boats.
Group M and the individuals were granted immunity from fines
pursuant to their leniency applications. Although the BCA made it
clear that the infringement is "by definition, a very serious
restriction of competition", it imposed on Group P a fine of
€ 64,100 only. Seven factors led to this moderate level of
First, for the calculation of the fine, the duration of the
infringement was limited to the period from 2007 to 2014. The BCA
considered that, although the first anticompetitive agreement was
effective as from 1983, it was only in October 2006 that Belgian
law made it possible to prosecute and sanction SMEs for competition
law infringements. As a result, the BCA did not take into account
the period prior to 2006. In addition, since the tourist season for
river cruises only lasts from April to October, the BCA did not
include 2006 either in its calculation of the duration of the
Second, the gravity factor was limited to 15% on account of the
"limited geographic scope" of the agreements (the upper
section of the river Meuse and the navigable part of the river
Lesse). Third, the BCA limited the increase for deterrence to the
minimum amount (15%). Fourth, Group P's fine was capped
in order not to exceed the 10% statutory ceiling set out in Article
IV.74 of the Code of Economic Law (Wetboek van economisch
recht / Code de droit économique).
Fifth, the fine was then reduced by 45% as the BCA accepted
Group P's leniency application and considered that Group P
applied for leniency early in the process and provided additional
explanations of the anticompetitive behaviour.
Sixth, Group P's fine was further reduced (by an undisclosed
percentage) on account of proportionality: interestingly, the BCA
considered that the calculated amount of the fine was
disproportionate "since these undertakings are SMEs and do not
belong to a large group". Lastly, Group P's fine was
reduced by 10% as it agreed to settle the case.
Since the BCA adopted its decision following the settlement
procedure, it cannot be appealed.
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In a decision in the names Uffiċċju għall-Kompetizzjoni Ġusta v Korporazzjoni Enemalta et handed down on 4 October 2016, the Competition and Consumer Appeals Tribunal found that...
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