Belgian Competition Authority Advises Antwerp Court of Appeal as Amicus Curiae in “Verticals” Case

On 17 November 2014, the Belgian Competition Authority ("BCA") filed a brief as amicus curiae before the Court of Appeal of Antwerp in a case concerning a vertical agreement in the express delivery sector.

Under Article IV.77 of the Code of Economic Law, the BCA can, on its own initiative or at the request of a Belgian jurisdiction, issue an opinion as amicus curiae on the application of Belgian or European competition law to a specific case. This possibility did not exist before the entry into force of the new competition law provisions in September 2013. Until then, the BCA could intervene as amicus curiae on the interpretation of European competition law only, pursuant to Article 15(3) of EU Regulation 1/2003.

The BCA filed a brief before the Court of Appeal of Antwerp in proceedings pitting Biomet Belgium BVBA ("Biomet") against AGX Group BVBA ("AGX"). In 2008, AGX and Biomet had entered into a vertical agreement whereby AGX would transport and deliver the surgical equipment which Biomet lends to hospitals for surgeries. Under this agreement, AGX enjoyed permanent exclusivity over Biomet's "standard orders", although such exclusivity did not extend to "rush orders". The issue of the potentially anticompetitive nature of this agreement arose before the Court of Appeal of Antwerp. On 23 June 2014, the Court adopted an interim judgment requesting the BCA to take a position on the definition of the relevant market, on the calculation of the market shares of the parties and on whether the agreement appreciably restricted competition.

The BCA first defined the relevant market on the basis of the decisional practice of the European Commission. This distinguishes between express delivery and standard delivery of small packages (of less than 31.5 kg) and between domestic and international delivery services. On this basis, the BCA determined that the relevant market was the Belgian market for express delivery of small packages, without further narrowing this definition to medical or surgical packages, contrary to Biomet' s position.

The BCA then noted that the submissions and evidence filed by the parties in the procedure did not enable it to determine exactly their market shares in the relevant market. However, based on the judgment adopted in first instance by the Commercial Court of Antwerp on 3 April 2012 and on the submissions of the parties, the BCA considered that the market shares of both parties were very probably below 15%.

Finally, the BCA analysed the effects of the agreement. The BCA noted that the permanent exclusivity clause covered the entire territory of a Member State of the EU. As a result, such a restriction could affect competition within the internal market and fall under Article 101 of the Treaty on the Functioning of the European Union ("TFEU"), provided it had an appreciable effect on competition. However, the BCA found that this restriction was unlikely to have an appreciable effect on either Belgian or European competition, as it satisfied the conditions set out under the De Minimis Notice of the European Commission. None of the parties' market shares exceeded 15% and the contested exclusivity clause did not constitute a restriction "by object" as defined by EU case law. The BCA concluded that the agreement between Biomet and AGX did not have an appreciable effect on competition and therefore fell outside the scope of both Article 101 TFEU and its Belgian equivalent, Article IV.1 of the Code of Economic Law.

The opinion of the BCA does not bind the Court of Appeal of Antwerp which still has to rule on the merits of this case.