Standard-setting Agreements: The Fine Line Between Legitimate Lobbying Activities And Cartel Behaviour (Belgium)

Abstract

The participation of competitors in standard-setting procedures raises complex competition law issues. A recent Belgian case in the cement sector illustrates that the line between legitimate intervention and illegal anticompetitive behaviour is not always easy to draw in practice. ... On 30 June 2016, the Brussels Court of Appeal (‘Court of Appeal’) annulled1 the decision by the Belgian Competition Authority (‘BCA’) of 30 August 20132 which had established the existence of an anticompetitive agreement between three cement groups and their sector associations in the context of standard-setting. In its 2013 decision, the BCA established that the behaviour of the accused parties went beyond lobbying and the normal participation in a standard-setting. It stated that the parties had engaged in a concerted action with the objective of foreclosing a new product from the Belgian market, and consequently considered the parties’ actions to be a restriction of competition ‘by object’. The Court of Appeal firmly disagreed and annulled the BCA decision on the grounds that there had been no wrongdoing at all by the parties involved. It stated that their behaviour remained within the boundaries of legitimate lobbying in a regular standard-setting context and consequently did not even constitute a restriction of competition.