Short Reads

Brussels Court of Appeal rules that cement producers do not breach competition law

Brussels Court of Appeal rules that cement producers do not breach co

Brussels Court of Appeal rules that cement producers do not breach competition law

02.08.2016 NL law

On 30 August 2013, the Belgian Competition Authorities imposed fines for approximately EUR 14.5 million in total on cement producers CBR, CCB and Holcim, as well as smaller fines of EUR 100,000 each on the trade association for Belgian cement producers (FEBELCEM) and the national centre for research for the cement industry (CRIC).

The competition authority found that the entities concerned had engaged in a concerted practice with a view to delaying the adoption of a number of regulatory instruments permitting the use of LMA (laitier moulu agrée) as a substitute for CEM III cement in the production of ready-mix concrete. In particular, it found that this concerted practice was intended to prevent the Dutch LMA producer Orcem entering the Belgian market.

The Brussels Court of Appeal's judgment first dismissed the procedural objections raised against the decision of the Belgian Competition Council. Despite the fact the procedure had been before the Council for a lengthy period of 7 years and 9 months, the Court noted that none of the claimants had provided specific arguments as to why this delay compromised their rights of defence (e.g. by identifying names of former staff members that had left the company and could no longer be contacted to give evidence). The Court also rejected the suggestion that the mere fact that the decision was not read out in a public hearing amounted to a breach of Article 149 of the Belgian Constitution and/or Article 6(1) European Convention on Human Rights. A challenge to the impartiality of the Competition Council was similarly dismissed.

However, on the merits of the case, the Court of Appeal overruled the Competition Council's decision that the concerted practice amounted to a restriction of competition by object. According to the Court, the Council failed to properly take into account the lobbying context in which the conversation took place. Referring to a previous judgment of the General Court of the EU, ECM Developments, the Court of Appeal stressed in particular that none of the relevant decision-making bodies were controlled by the cement producers. Furthermore, the participation of the cement producers in the consultative and decision-making process had taken place in an open, objective, transparent and non-discriminatory context. The Court of Appeal held that because the undertakings had not influenced the procedures to the extent of controlling and undermining them, they had not gone beyond permissible lobbying. Accordingly, the contested conduct had not taken place ‘on’ the market and could not give rise to a breach of competition law. In light hereof, the Court decided to annul the Council's decision, including the fines imposed therein.

This article was published in the Competition Law Newsletter of August 2016. Other articles in this newsletter:

  1. Court of Justice clarifies the legality of royalty payments in the event of revocation or non-infringement of the licensed patent 
  2. General Court confirms fines imposed on the basis of economic continuity in maritime hose cartel 
  3. European Commission imposes record cartel fine on truck manufacturers for price fixing 
  4. European Commission deems support measures in favour of Dutch football clubs in line with State aid rules 
  5. Dutch District Court ruled that parent companies cannot be held liable for damages arising from antitrust infringements committed by their subsidiaries 
  6. ACM lowered fines in the pepper cartel case 
  7. Dutch Supreme Court confirms the availability of a passing-on defence in antitrust damages litigation 
  8. Brussels Court of Appeal rules that concerted lobbying efforts of cement producers do not breach competition law 
  9. Belgian competition authority upholds licence refusal to football club White Star

Source: Competition Law Newsletter August 2016

Team

Related news

06.05.2021 EU law
Abuse of economic dependence: lessons drawn from the first judgments

Short Reads - On 22 August 2020, the ban on abuse of economic dependence was implemented in Belgium (Article IV.2/1 of the Code of Economic Law). Now that almost a year has passed and the first judgments have been rendered, we assess what first lessons can be drawn from these judgments. The rulings show that the ban is regularly relied upon in court and has lowered the hurdle for plaintiffs to make their case.

Read more

01.04.2021 NL law
Slovak Telekom: ECJ on essentials of the ‘essential facilities’ doctrine

Short Reads - Only dominant companies with a “genuinely tight grip” on the market can be forced to grant rivals access to their infrastructure. According to the ECJ’s rulings in Slovak Telekom and Deutsche Telekom, it is only in this scenario that the question of indispensability of the access for rivals comes into play. In the assessment of practices other than access refusal, indispensability may be indicative of a potential abuse of a dominant position, but is not a required condition.

Read more

01.04.2021 NL law
Pay-for-delay saga ends with nothing new; but pharma quest continues

Short Reads - On 25 March 2021, the ECJ ended the Lundbeck pay-for-delay saga by dismissing the appeals from Lundbeck and five generic manufacturers against a European Commission ‘pay-for-delay’ decision. Following its recent Paroxetine judgment, the ECJ found that Lundbeck’s process patents did not preclude generic companies being viewed as potential competitors, particularly since the patents did not represent an insurmountable barrier to entry. In addition, the patent settlement agreements constituted infringements "by object".

Read more

01.04.2021 NL law
ECJ in Pometon: beware of too much info in staggered hybrid proceedings

Short Reads - In hybrid cartel proceedings (in which one party opts out of settlement), settlement decisions should not pre-judge the outcome of the Commission's investigation into non-settling parties. When the Commission publishes the settlement decision before the decision imposing a fine on the non-settling party, it must be careful in its drafting, the European Court of Justice confirmed. Furthermore, differences in the fining methodology applied to (similarly placed) settling and non-settling parties will have to be objectively justified and sufficiently reasoned.

Read more