On 27 September 2012, the Competition Council annulled a decision of the College of Competition Prosecutors not to pursue a complaint on the basis of the enforcement priority policy. The Competition Council held that the decision was not sufficiently reasoned.
On 19 December 2011, the College of Competition Prosecutors decided not to pursue a complaint lodged in November 2009 on behalf of Duma NV and GS International BVBA. In their complaint, these companies claimed that Mitsubishi had restricted competition by no longer delivering forklift trucks to Duma. The College of Competition Prosecutors considered that this case was not an enforcement priority and that, therefore, an investigation on the merits of the case would not be justified. The complainants appealed this decision, claiming that it was not sufficiently reasoned.
Pursuant to Article 45§2 of the Competition Law, the College of Competition Prosecutors can take a reasoned decision not to pursue a case based on its enforcement priority policy. The Competition Council acknowledged that the College of Competition Prosecutors has a certain margin of appreciation when taking such a decision. Nevertheless, the Competition Council added that the College of Competition Prosecutors must conduct a minimal review of the facts underlying the complaint. According to the Competition Council, merely referring to the criteria used when determining the enforcement priorities and stating that these criteria have not been met, as was done in the contested decision, does not constitute sufficient reasoning. The reasoning provided should refer to the factual or judicial elements considered in the decision. Moreover, when referring to criteria used to determine enforcement priorities, the College of Competition Prosecutors must make clear which of the listed criteria were decisive in the decision not to pursue the case. The Competition Council annulled the contested decision and sent the file back to the College of Competition Prosecutors.
Given that the enforcement priority policy dictates a significant proportion of the decisions not to pursue a case, the recent decision of the Competition Council is significant. It will no longer be sufficient for the College of Competition Prosecutors simply to refer to the enforcement priority policy when deciding not to pursue a case. Every decision will have to be sufficiently reasoned.