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• Belgium: Fine imposed for Abuse of Dominant Position in Export and Distribution of French Magazines in BelgiumOn 30 July 2012, the Competition Council (the Council) sanctioned the French company Presstalis (Presstalis) for having abused its dominant position between 2002 and 2004 through its system of rebates. The system, which was called BSC (the BSC system), rewarded the French publishers who chose to work with Presstalis for the whole of their export of magazines destined jointly for the Belgian, the Swiss and the Canadian markets (BSC is the acronym for Belgium, Switzerland and Canada). The BSC system and the commercial conditions for export applied by Presstalis were the subject of several complaints made to the European Commission and the Belgian and French competition authorities. The complaints originated from, amongst others, Belgian press distributors. The European Commission and the French competition authority did not take position on the substance of such complaints.

The decision of the Competition Council establishes that Presstalis, who is also one of the biggest press distributors in France, has a dominant position on the world market for the export of French press (magazines) sold per copy, the rest of the market being shared between Export Press, a small competitor of Presstalis, and French publishers which organized the export of their own publication themselves. Belgium is an important market, representing about a third of the export of French magazines sold by copy. French magazines also represent a substantial part of magazines sold on the Belgian market.

According to the Council, a system in which rebates are given as a counterpart of the obligation of the clients (in this case, the publishers) to award the total or the majority of their publications to a dominant company may be considered abusive. This type of rebates may have fidelity effects for clients, in this case the French publishers. Specifically, under the BSC system of rebates applied by Presstalis, a French publisher who would have decided not to work with Presstalis for the whole of its export of magazines destined for Belgium, would have lost the benefit of the rebate for its export sales not only on the Belgian market, but also on the Swiss and the Canadian market.

The Council analysed henceforth the BSC system as a conditional, retroactive rebate scheme that raised exclusionary concerns in view of the protection of free competition at two levels.

First, the restriction of competition was found to exist at the level of the choice of the clients of Presstalis (publishers): the BSC system encouraged them to work only with Presstalis for the three most important export markets for French magazines. The result was that the publishers were not inclined to either export themselves and then to work directly with a local distributor, or to work with (one of the few) competitors of Presstalis on the export market.

Secondly, the decision emphasized the effects of the BSC system on the Belgian market for the distribution of French magazines sold per copy. The Council found that it was difficult for Belgian distributors, such as the complainant in this case, to offer commercial conditions to the publishers that matched the conditions offered by Presstalis under the BSC rebate scheme, whilst being economically viable for the distributors: it indeed appeared that the unit price that a Belgian distributor needed to offer to French publishers in order to be competitive with Presstalis, dropped to a level which was lower that the discounted price charged by Presstalis under the BSC rebate scheme. Moreover, the Council found that the BSC system was considered to have the effect of reinforcing the position of AMP, the biggest distributor in Belgium, with whom Presstalis had a privileged relationship. In practice, the distribution of the French magazines tended to be done quasi-automatically by AMP in Belgium once a publisher had entered into an agreement with Presstalis which awarded him the benefit of the BSC system.

The Council concluded that the BSC rebate scheme is to be considered as a restrictive practice both from the perspective of the Belgian Act on the protection of economic competition (Article 3) as well as under Article 102 TFEU. In its decision, the Council imposed a fine of € 245 530.

For the calculation of the fine, the Council took into consideration the duration of the investigation and the fact that the system was abolished in 2004. The amount of the fine is based on the commissions that Presstalis received for the sale of French magazines on the Belgian market.

This decision has been appealed by Presstalis. The appeal is pending before the Court of Appeal of Brussels.

See decision of 30 August 2012 (in Dutch)

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