By a decision of 7 November 2016, the Belgian Competition Authority ("BCA") closed its investigation regarding Belgium’s leading real estate web portal Immoweb. The investigation concerned Most Favoured Nation ("MFN") clauses in contracts between Immoweb and developers of software for real estate agencies.
The developers of software for real estate agencies were paid by Immoweb for each real estate offer that was transferred through their software to the Immoweb portal. However, Immoweb inserted MNF clauses in its contracts with the software developers, which stated that the software developers also working with Immoweb’s competitors had to offer Immoweb the same conditions if these conditions were financially more advantageous than those concluded with Immoweb.
In its preliminary analysis, the BCA came to the conclusion that such clauses were restricting competition by raising the costs of Immoweb’s competitors. In response, Immoweb committed to unilaterally stop using MFN clauses and to refrain from incorporating MFN clauses in future contracts with software developers for a period of 5 years.
As a result of these commitments, the BCA decided to close the investigation. It did not take a position on whether Immoweb had violated competition rules by incorporating the abovementioned clauses in its contracts with software developers.
The decision confirms the approach adopted by the BCA in the Distri-One v. Coca-Cola and Banksys cases that commitments can lead to the end of an investigation. The BCA also follows other decisions in Europe regarding MFN clauses, such as in the Booking.com case, where the French, Swedish and Italian Authorities accepted commitments and closed their investigation. In Germany, however, the Bundeskartellamt rejected the commitments offered by Booking.com, considering they were insufficient to reverse the collusive impact of the contested MFN clauses.
This article was published in the Competition Law Newsletter of December 2016. Other articles in this newsletter:
1. European Commission publishes study on the passing-on of overcharges
2. Legislative Proposal introducing class actions in the Netherlands before House of Representatives