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The Belgian Competition Council clears alleged anti-competitive behaviour by undertakings active in BSE Testing on ground of state compulsion

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27/08/2013
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The Belgian competition authority has decided that there was no reason to act against allegations of price agreements and market partitioning in the sector of BSE testing, because the companies involved acted at the insistence of a state authority.

Following a leniency application in 2009, the prosecutor at the Belgian Competition Council started an inquiry into the pricing and geographical allocation by laboratories active in the sector of BSE testing. The prosecutor was of the opinion that these laboratories exchanged commercially sensitive information, leading to price agreements and geographical market allocation. The inquiry involved all Belgian laboratories active in BSE testing as well as a large number of slaughterhouses and their professional organisation, and led to a hearing in April 2011.

The Competition Council has now decided that the Belgian Federal Agency for the Safety of the Food Chain (FASFC) encouraged the laboratories to convene to reach a joint position on the price for BSE testing and determine a geographical allocation scheme among themselves. The Council was of the opinion that the laboratories were unable to autonomously determine the price for their services and, therefore, were unable to compete. It concluded that article 101 TFEU and Article 2 of the Belgian Competition Act did not apply because the laboratories’ conduct was the result of state compulsion. It also concluded that there was no reason to act against the slaughterhouses and their professional association.

It is interesting to note that the undertakings involved were not required by law to enter into an agreement. The fact that the FASFC encouraged the undertakings to agree to reach a joint position on pricing and geographical allocation, and that it then took a decision on that, was sufficient for the Competition Council to decide that there was no reason to act on the basis of article 101 TFEU and section 2 of the Competition Act.

One of the laboratories involved, Eurofins Belgium NV, was represented by Isabelle Buelens at Liedekerke Wolters Waelbroeck Kirkpatrick. Eurofins Belgium played a crucial role in this case.”