On 28 February 2013, the Belgian Competition Council imposed fines on five flour mills for participating in a cartel on the market for the production and sale of flour in Belgium. The incriminating practices consisted of horizontal agreements, including the exchange of commercially sensitive information and the coordination of price increases with the purpose of stabilizing the market position of the participating flour mills. The Council did not determine the cartel participants' fines based on their Belgian turnover but imposed lump sum fines amounting to EUR 100,000 for three of the undertakings concerned.
The Council’s investigation was prompted by leniency applications following the initiation of investigations in other Member States, such as Germany and the Netherlands. The Dutch Competition Authority imposed fines on most of the undertakings involved in the Belgian investigation but not on Brabomills.
Brabomills appealed the decision of the Belgian Competition Council alleging an infringement of the ne bis in idem principle. Referring to the EU Court of Justice's judgment in the Toshiba case, the Belgian Court of Appeal upheld this ground of appeal. It determined that the Competition Council’s method for calculating the fine – the lump sum – did not make it possible to determine whether or not the appellant had been sanctioned for consequences of the infringement that occurred in the Netherlands and for which it had been acquitted by the Dutch Competition Authority. Because the infringement related to a single and continuous cartel in the Benelux and the Council did not indicate clearly that the fine it imposed only related to the consequences of the infringement on the Belgian territory, the Court could not rule out that this fine was (partly) a sanction for effects of the cartel on the Dutch territory. To rule out "bis in idem", the Brussels Court of Appeal decided to annul the EUR 100,000 fine imposed on Brabomills.
