In a judgment dated 30 June 2016, the Brussels Court of Appeal annulled a decision of the Belgian Competition Authority ("BCA"). That decision had imposed a EUR 14.7 million fine on three cement producers and two professional associations. The judgment confirms that undertakings' lobby activities are not automatically subject to competition law.
The BCA decided in 2013 that three cement undertakings, through their professional association FEBELCEM and the Research Centre for the Cement industry, had agreed to hinder the Belgian market entry of a cheaper competitor, ORCEM.
ORCEM processed blast furnace slag in readymix concrete instead of cement. In 2000, ORCEM submitted a request for certification of its product. That request was repeatedly delayed and refused, due to modifications to the applicable certification requirements. ORCEM only received preliminary certification in September 2002 and final certification in September 2004. The cement undertakings participated in advisory bodies which assisted the competent authorities with the assessment of this request. According to the BCA, the cement undertakings had concerted to hinder ORCEM's market entry, and hence had acted as a cartel.
In the judgment of 30 June 2016, the Court of Appeal found that such conduct is not of an economic nature and thus is not subject to competition law. The conduct took place in the context of lobbying activities and advice to political authorities, and the undertakings had been expressly invited to participate, along with other stakeholders. If, in such a context, the undertakings attempt to influence a decision-making process and do not themselves adopt the decision, then such activities take place "outside of the market". This activity is to be distinguished from certain standards agreed between undertakings; such agreements are subject to competition law.
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Stijn Goovaerts
