On 31 October 2025, the Belgian Supreme Court overturned a judgment of the Markets Court of the Brussels Court of Appeal of 15 February 2023 (the Challenged Judgment).

The Challenged Judgment had partially annulled a decision by which the Belgian Competition Authority (the BCA) had fined four tobacco manufacturers on account of two concerted practices involving the exchange of commercially sensitive information through wholesalers.

In the Challenged Judgment, the Markets Court had confirmed the BCA’s finding that the tobacco manufacturers had committed an infringement by object of Article IV.1 of the Code of Economic Law (the CEL) and Article 101 of the Treaty on the Functioning of the European Union (TFEU).

However, the Markets Court had also held that the BCA had insufficient reasons to conclude to the existence of two single and continuous infringements. This is because the BCA had failed to show, in concrete terms, that (i) there was an overall plan to restrict competition to which the manufacturers had each contributed; and (ii) the parties had been aware of the illegality of each other’s conduct (i.e., receiving and processing price lists).

The Markets Court had also discovered other flaws in the reasoning of the BCA, such as the fact that, based on the duration of the infringement determined by the BCA for each of the parties, one of the tobacco manufacturers found itself to be the only party to an anticompetitive agreement for part of its duration, which is logically impossible.

The Markets Court had thus annulled the BCA Decision, except for the finding of an infringement of Article IV.1 CEL and Article 101 TFEU.

The tobacco manufacturers filed a further appeal to the Supreme Court against the Challenged Judgment. The Supreme Court held that, for an anticompetitive concerted practice to exist, it is necessary to establish the period during which the practice took place, as “the determination of this period is inseparable from the very existence of the concerted practice”.

The Supreme Court noted that it was impossible for the Markets Court to confirm a BCA decision finding an anticompetitive concerted practice while at the same time annulling that very decision because of flaws in the definition of the beginning and end of the infringement.

The Supreme Court therefore annulled the Challenged Judgment and referred the case back to the Markets Court which will have to reconsider the case staffed differently.