Joint lobbying activities do not constitute anticompetitive concerted practices says Brussels Court of Appeal

On 30 June 2016, the Brussels Court of Appeal (Hof van beroep te Brussel / Cour d'appel de Bruxelles) overturned a 2013 decision of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la concurrence) (“BCA”) fining cement companies involved in an alleged cartel.

On 30 August 2013, the BCA (then called the Belgian Competition Council - Raad van de Mededinging / Conseil de la concurrence) imposed a total fine of approximately € 14,700,000 on several cement companies that were considered to have taken part in an anticompetitive agreement aimed at delaying the use of Ground Granulated Blast Furnace Slag (GGBFS) as a substitute for cement in its ready-mix concrete application.

The BCA found that, between May 2000 and October 2003, cement companies Cimenteries CBR S.A., Compagnie des ciments belges S.A. (CBB), HOLCIM (Belgique) S.A., the industry association FEBELCEM and the research institute for the cement industry CRIC-OCCN colluded to delay the adoption of the necessary authorisation and standards for the use of GGBFS as a component of ready-mix concrete, thereby strengthening their market position (See VBB on Belgian Business Law, Volume 2013, No. 8, p. 6, available at www.vbb.com).

CBR, CBB, HOLCIM and FEBELCEM appealed the BCA’s decision before the Brussels Court of Appeal.

The Court first recalled that concerted practices fall under the scope of competition law only if they take place on the market. On the contrary, competition law does not prohibit exchanges of information and concertation that do not concern the undertakings’ behaviour on the market.

The Court found that, in the present case, the cement companies’ behaviour merely amounted to lobbying activities, since they were invited, together with other stakeholders, to give their opinion as market players. This lobbying took place under the supervision of the former Belgian Institute for Standardisation (now Bureau for Standardisation) and UBAtc (Belgium's authority for technical approval of construction materials), both controlled by the Ministry for Economic Affairs. In addition, HOLCIM, CCB, CBR and FEBELCEM never had control, even jointly, over the advisory and decision-making bodies which they attended. The Court noted that the undertakings’ involvement in these bodies had the effect that their lobbying efforts took place in an open, objective, transparent and non-discriminatory framework, as required by the European Commission in its guidelines on horizontal cooperation agreements.

As a result, the Court found that the behaviour of the cement companies did not take place on the market and remained closely linked to the authorisation and standardisation process, which complied with EU rules on openness, objectivity, transparency and non-discrimination. Consequently, the companies did not engage in restrictive practices within the meaning of competition law. The Court therefore overturned the BCA’s decision.

This judgment can be further appealed before the Belgian Supreme Court (Hof van Cassatie / Cour de cassation). Appeals to the Supreme Court are limited to points of law: the Supreme Court cannot review facts; it can only make sure that the law was properly interpreted and applied.