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 fine.
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 infringement.
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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