Belgian Competition Authority dismisses Spira’s complaint against De Beers

On 15 October 2014, the Belgian Competition Authority ("BCA") dismissed on the basis of its enforcement priorities an antitrust complaint filed by A. Spira BVBA ("Spira"), a Belgium-based dealer of rough diamonds, against De Beers UK Limited and Diamdel NV in its capacity as liquidator of Diamond Trading Company (PTY) Limited ("De Beers"), the world's largest producer of rough diamonds.

De Beers sells rough diamonds in lots to its customers (called "sightholders"). In 2003, De Beers rationalised its distribution system by the introduction of the Supplier of Choice ("SOC") system. The SOC system was approved by the European Commission in 2003 by way of a comfort letter.

Following the implementation of the SOC system, Spira, who had been acting as a sightholder for De Beers from 1935 to 2003, was no longer allowed to purchase rough diamonds from De Beers. As a result, Spira filed a complaint against De Beers to the European Commission in 2003, claiming that the SOC system infringed Articles 101 and 102 TFEU. The Commission rejected Spira's complaint by decisions of 27 January 2007 and 5 June 2008. The Commission stated that there was insufficient Community interest to further investigate Spira's complaint considering the unlikelihood of finding an infringement. Spira lodged an appeal against both decisions.

While Spira's appeal was pending before the EU General Court, Spira also lodged a complaint before the BCA on 30 October 2009. Spira argued before the BCA that De Beers was attempting to restrict the resale of rough diamonds and to control the downstream market though the SOC system, contrary to Articles IV.1 and IV.2 of the Commercial Code. In addition, Spira sought interim relief from the President of the BCA, who ordered De Beers to temporarily resume its supply of rough diamonds to Spira (see VBB on Belgian Business Law, Volume 2012, No. 8, available at www.vbb.com), although the decisions renewing such relief were annulled by the Brussels Court of Appeal on 26 March 2013.

On 11 July 2013, the EU General Court dismissed Spira's appeal against the European Commission decisions rejecting its complaint (see VBB on Competition Law, Volume 2013, No. 8, available at www.vbb.com). Following these developments, the BCA reassessed the case and decided, on 15 October 2014, to dismiss Spira's complaint on the basis of the BCA's enforcement priorities and its available resources, in accordance with Article IV.42(2) of the Commercial Code. The BCA considered that, since the chances of finding an infringement of competition law were too low to trigger a European Commission investigation, the same reasoning should a fortiori apply in Belgium, as the BCA's resources are more limited than those of the Commission. Finally, the BCA noted that the diamond sector was not a priority sector for intervention in 2014.