Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

Section IV.2 of the CDE regarding abuse of dominance is based on the wording of Article 102 TFEU. It prohibits, without the need for a prior decision to that effect, any abuse by one or more undertakings of a dominant position within the Belgian market or in a substantial part thereof. There are no derogations to the prohibition on abuse of dominance. 
Defining the relevant market and assessing do …

Abuse of dominant position

Section IV.2 of the CDE regarding abuse of dominance is based on the wording of Article 102 TFEU. It prohibits, without the need for a prior decision to that effect, any abuse by one or more undertakings of a dominant position within the Belgian market or in a substantial part thereof. There are no derogations to the prohibition on abuse of dominance. 

Defining the relevant market and assessing dominance are carried out in  accordance with the applicable principles under EU competition law.  Under case law it is generally considered that a dominant position is  the result of a conjunction of a number of criteria, which individually would not be relevant. The first criterion assessed is generally  relative to the existence of a large market share.

Once dominance is found to exist, for the prohibition to come into play  there must be an abuse. Section IV.2 of the CDE sets out a non-exclusive list of prohibited conduct including: directly or indirectly imposing  unfair trading conditions, limiting production, markets or technical  development, applying dissimilar conditions to equivalent transactions  or making the conclusion of contracts subject to acceptance of unrelated  terms. The evaluation of whether a term is fair depends upon whether  the discriminated party would have accepted it had the other party not  been in a dominant position and had real competition existed.

The Act of 4 April 2019 introduced the prohibition of abuse of economic dependence into Belgian law. Under new Section IV.2/1 of the CDE, which entered into force on 1 June 2020, it is prohibited for one or more undertakings to abuse a position of economic dependence in which one or more undertakings are placed, where competition is liable to be affected thereby on the Belgian market concerned or a substantial part of it. 

Section I.6, 12 bis of the CDE characterizes economic dependence as the absence of a reasonably equivalent alternative available within a reasonable period of time, on reasonable terms and at reasonable cost, allowing the partner(s) of the undertaking to impose benefits or conditions that could not be obtained under normal market circumstances.

Section IV.2/1 provides a non-exhaustive list of examples of abuse, such as the refusal to sell or buy, the direct or indirect imposition of purchase or selling prices or other unfair trading conditions, or discriminatory terms.

Abuse may be sanctioned by the Competition Authority ex officio or following a complaint, by a fine of up to 2% of the domestic and export turnover achieved in the year preceding the decision. Periodic penalty payments of 2% of the daily turnover may be imposed until the practice in question has ceased.  The infringement may also give rise to private enforcement before the Belgian courts.

Abuse of economic dependence

Once dominance is found to exist, for the prohibition to come into play there must be an abuse. Section IV.2 of the CDE sets out a non-exclusive list of prohibited conduct including: directly or indirectly imposing unfair trading conditions, limiting production, markets or technical development, applying dissimilar conditions to equivalent transactions or making the conclusion of contracts subject to acceptance of unrelated terms. The evaluation of whether a term is fair depends upon whether the discriminated party would have accepted it had the other party not been in a dominant position and had real competition existed.

Global Competition Law

34. Abuse of dominant position

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Les notions juridiques connexes

34. Abuse of dominant position

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Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise