On 30 June 2016, the Brussels Court of Appeal (Hof van
beroep te Brussel / Cour d'appel de Bruxelles)
overturned a 2013 decision of the Belgian Competition Authority
(Belgische Mededingingsautoriteit / Autorité
belge de la concurrence) ("BCA") fining cement
companies involved in an alleged cartel.
On 30 August 2013, the BCA (then called the Belgian Competition
Council - Raad van de Mededinging / Conseil de la
concurrence) imposed a total fine of approximately €
14,700,000 on several cement companies that were considered to have
taken part in an anticompetitive agreement aimed at delaying the
use of Ground Granulated Blast Furnace Slag (GGBFS) as a substitute
for cement in its ready-mix concrete application.
The BCA found that, between May 2000 and October 2003, cement
companies Cimenteries CBR S.A., Compagnie des ciments belges S.A.
(CBB), HOLCIM (Belgique) S.A., the industry association FEBELCEM
and the research institute for the cement industry CRIC-OCCN
colluded to delay the adoption of the necessary authorisation and
standards for the use GGBFS as a component of ready-mix concrete,
thereby strengthening their market position (See VBB on Belgian
Business Law, Volume 2013, No. 8, p. 6,available atwww.vbb.com ).
CBR, CBB, HOLCIM and FEBELCEM appealed the BCA's decision
before the Brussels Court of Appeal.
The Court first recalled that concerted practices fall under the
scope of competition law only if they take place on the market. On
the contrary, competition law does not prohibit exchanges of
information and concertation that do not concern the
undertakings' behaviour on the market.
The Court found that, in the present case, the cement
companies' behaviour merely amounted to lobbying activities,
since they were invited, together with other stakeholders, to give
their opinion as market players. This lobbying took place under the
supervision of the former Belgian Institute for Standardisation
(now Bureau for Standardisation) and UBAtc (Belgium's authority
for technical approval of construction materials), both controlled
by the Ministry for Economic Affairs. In addition, HOLCIM, CCB, CBR
and FEBELCEM never had control, even jointly, over the advisory and
decision-making bodies which they attended. The Court noted that
the undertakings' involvement in these bodies had the effect
that their lobbying efforts took place in an open, objective,
transparent and non-discriminatory framework, as required by the
European Commission in its guidelines on horizontal cooperation
As a result, the Court found that the behaviour of the cement
companies did not take place on the market and remained closely
linked to the authorisation and standardisation process, which
complied with EU rules on openness, objectivity, transparency and
non-discrimination. Consequently, the companies did not engage in
restrictive practices within the meaning of competition law. The
Court therefore overturned the BCA's decision.
This judgment can be further appealed before the Belgian Supreme
Court (Hof van Cassatie / Cour de cassation).
Appeals to the Supreme Court are limited to points of law: the
Supreme Court cannot review facts; it can only make sure that the
law was properly interpreted and applied.
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