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

09.12.2019 BE law
Stibbe expands EU/competition practice with new partner Sophie Van Besien

Inside Stibbe - Brussels, 9 December 2019 – Stibbe welcomes EU law, competition, and regulated markets lawyer Sophie Van Besien as a new partner in its Brussels office. Her expertise will enhance Stibbe’s service offering in the Benelux and contribute to the further development of its EU/competition and regulated markets practice. Sophie joins Stibbe on 9 December 2019.

Read more

05.12.2019 NL law
Big tech firms entering banking: be careful what you wish for

Short Reads - Big tech firms, whether entering or already active on payments markets, are under scrutiny. PSD2 has opened up the payments markets to non-bank companies, but this comes with both risks and opportunities. EU regulators are examining anticompetitive risks, for example the possibility of leveraging a strong position in one market into another market. Competition, innovation, privacy and security for financial transactions will all be hot topics as scrutiny increases on providers of payment services.

Read more

09.12.2019 BE law
Stibbe versterkt EU/competition praktijk met nieuwe vennote Sophie Van Besien

Inside Stibbe - Brussel, 9 december 2019 – Stibbe verwelkomt Sophie Van Besien, gespecialiseerd in Europees recht, mededingingsrecht en gereguleerde markten, als nieuwe vennote in het Brusselse kantoor. Sophie’s expertise zal Stibbe’s dienstverlening in de Benelux versterken en bijdragen aan de verdere ontwikkeling van zijn EU/competition en regulated markets praktijk. Sophie vervoegt Stibbe op 9 december 2019.

Read more

09.12.2019 BE law
Stibbe renforce sa pratique de droit européen et de la concurrence par la venue de Sophie Van Besien en qualité d’associée

Inside Stibbe - Bruxelles, le 9 décembre 2019 –  Stibbe a le plaisir d’accueillir Sophie Van Besien, avocate spécialisée en droit européen, droit de la concurrence et des marchés réglementés, en qualité de nouvelle associée au sein de son cabinet bruxellois. Son expertise permettra d’enrichir les prestations actuelles du cabinet au Benelux et de contribuer au développement de son activité en droit européen et en droit de la concurrence ainsi que des marchés réglementés. Sophie Van Besien rejoint Stibbe ce 9 décembre 2019.

Read more

05.12.2019 NL law
Walking a thin line: cooperation and collusion

Short Reads - Buying groups are under attack from competition authorities across Europe. Joint buying arrangements are aimed at strengthening participating companies' bargaining power towards their trading partners, usually resulting in lower prices or better quality for consumers. However, these buying arrangements must stay on the right side of the line between legitimate cooperation and anticompetitive collusion. Competition concerns may arise if the participating companies have a significant degree of market power or coordinate their conduct.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring