The BCA’s 2021 priorities are driven by a mix of factors including the Covid-crisis, “hot topics” dominating the international competition law debate such as sustainability and digital markets, and more “traditional” concerns voiced in previous years such as prices for several products being higher in Belgium than in neighbouring countries.
The BCA will focus its enforcement in 2021 on a number of “priority sectors” (such as digital services, telecommunication, energy and pharmaceuticals), which largely correspond to sectors it flagged in previous policy statements. The BCA will be able to rely on a new enforcement tool which allows it to pursue abuses of economic dependence, without having to demonstrate dominance. The BCA’s policy statement does not signal any specific initiatives, such as sector inquiries or new guidelines.
The BCA lists four “strategic priorities” for 2021:
- Covid-crisis – While the pandemic heralds a crisis for certain businesses, the BCA notes that it creates opportunities for others, as it spurs demand for innovative products and results in growth for certain sectors, such as e-commerce. The BCA aims to ensure that fair market dynamics will prevail, both in sectors suffering from the crisis as well as those benefiting from it.
Companies in industries heavily impacted by the Covid-crisis (for better or for worse) should consider possible competition law implications (e.g. the exit of a competitor may have resulted in a company becoming dominant in a market which can trigger additional responsibilities).
- Growing power of digital platforms – The BCA refers to the legislative initiatives taken by the EU (Digital Services Act and Digital Markets Act) and the German legislator. While intending to cooperate with other authorities to ensure a smooth implementation of these measures, the BCA did not signal that it would issue any own initiatives.
The last BCA initiative in the digital space was a 2019 joint paper with the Dutch and Luxembourg Competition Authorities. In this paper, the authorities advocated for closer scrutiny of mergers in digital markets and the introduction of an ex ante instrument allowing to impose remedies in digital and other fast-moving markets without the need to establish an infringement.
- Abuse of economic dependence – Since August 2020, the BCA has a new tool in its enforcement toolbox, aimed at protecting a weaker and economically dependent contracting party from abuses by a stronger, though not necessarily dominant, trading partner. The BCA has so far not taken any decisions based on this provision and intends to start shaping its enforcement practice in 2021.
It will be particularly interesting to see how the novel concept of ‘economic dependence’ will be interpreted. Foreign regimes such as those applicable in France and Germany could provide some guidance in this respect. Companies may want to keep an eye out for future enforcement and assess whether they could rely on this provision or whether they are at risk of trading partners invoking it against them.
- Green and circular economy – With its antitrust enforcement policy, the BCA aims to stimulate innovation and technological developments which will contribute to “greenifying” the Belgian economy. In its policy statement, the BCA indicates that it is open to help define instances where companies can cooperate to develop green technologies and reach sustainability goals. It will furthermore safeguard that such technologies are not withheld from the market.
This statement could be interpreted as meaning that the BCA would be willing to give informal guidance to competitors looking to team up to form ‘green partnerships’, rather than having a plan to publish general guidelines on sustainability projects such as those published by regulators in the UK and the Netherlands. The green economy seems particularly suited for the BCA to pursue “informal” means of promoting its competition policy, a priority it set in previous policy statements.
The BCA’s policy statement lists the following sectors as “priority sectors” that can expect continued scrutiny from the BCA:
- The digital economy – The BCA will focus mainly on the use of personal data and algorithms to facilitate antitrust infringements.
- Self-regulating professions – Research has shown that self-regulation of professions can lead to less competition and higher prices. The BCA will continue to scrutinise professional organisations and insist on changes in professional rules which are disproportionally strict in terms of access to the profession. Recent enforcement action in this respect includes the fine imposed on the Order of Pharmacists in 2019 for its attempts to impede the growth of MediCare-Market on the Belgian market.
- The distribution sector – The relationship between distributors and their suppliers has long been a priority for the BCA, as certain reports suggest that retail prices in Belgian supermarkets are higher than in neighbouring countries and that this trend has further intensified during the Covid-crisis.
- The energy sector – The number of companies active in this sector was reduced as a result of the Covid-crisis. Also taking into account the anticipated nuclear exit in Belgium, the BCA intends to be vigilant in relation to any attempts by the remaining energy players to limit competition between them.
- The pharmaceutical sector – The BCA has focussed on this sector in past years, with investigations into all levels of the value chain, involving producers, distributors and pharmacies. The Covid-crisis has further underlined the importance of this sector.
- The logistics sector – Given its importance for the Belgian economy, the BCA will remain vigilant that a healthy degree of competition prevails in this sector.
- Public procurement – Public procurement contracts continue to merit the BCA’s attention as they represent up to 15% of the Belgian GDP and are especially prone to collusive behaviour since the price-level does not impact volume, which is set by the public authority.
- The telecom sector – As Belgian consumers increasingly buy bundled telecom solutions, making them less likely to change provider, the BCA will continue to monitor competition in this sector and ensure that market entry is not hampered.
With the exception of the energy sector, the list of priority sectors is the same as the one included in the BCA’s 2020 policy statement. The inclusion of a sector in the priority list does not necessarily mean that the BCA will in fact pursue enforcement in the sector. Likewise, absence of a sector on the list does not shield industry players from enforcement action.
Consider early commitments as a “quick fix”
As in previous years, the BCA stresses that corrective measures – such as interim measures or commitments – are key to its enforcement policy. New, however, is the emphasis on the fact that commitments are possible throughout every stage of the procedure. The BCA also repeats that deciding on enforcement priorities includes a balancing of the likelihood of success with the means to be invested in an investigation.
The combination of those factors may signal an openness to a “quick fix” in certain cases, allowing the BCA to shift its limited resources to other issues. Companies facing a potential investigation should consider offering commitments early on, especially if the issue is not clear-cut, as this could prevent an onerous investigation possibly resulting in a finding of infringement and a fine.