The B2B Law entered into force almost six years ago and established the prohibition of abuse of economic dependence, laid down in Article IV.2/1 of the Code of Economic Law (CEL).

The Report considers the B2B Law to be an “indispensable instrument” to rebalance relationships between firms that find themselves with unequal bargaining power and claims that it has proven its value in practice. At the same time, it makes eight recommendations – grouped into five clusters – with a view to strengthening the effectiveness of the rules on abuse of economic dependence.

To that end, the Federal Public Service Economy submits these recommendations to the Chamber of Representatives and proposes targeted legislative amendments, complemented by the adoption of official guidelines and the development of practical guidance tools (such as FAQs).

Background

The concept of economic dependence was introduced by Parliament to address the high evidentiary burden supposedly associated with proving a dominant position under Article 102 of the Treaty on the Functioning of the European Union and Article IV.2 CEL, while also capturing abusive conduct by firms that do not hold a dominant position but nevertheless exploit the dependence of another firm.

The prohibition of abuse of economic dependence is subject to three cumulative conditions: (i) the existence of a position of economic dependence; (ii) an abusive practice; and (iii) an actual or potential restriction of competition on the Belgian market or a substantial part of that market.

Report recommendations

1. Position of economic dependence

Article I.7, 17° CEL sets out two cumulative conditions to establish a position of economic dependence: (i) the absence of a reasonably equivalent alternative available within a reasonable time, on reasonable terms and at reasonable cost; and (ii) the ability of one firm to impose performance or conditions on the other that could not be obtained under normal market circumstances.

First, the Report proposes to remove the second condition, so that the definition of economic dependence would rest solely on the absence of a reasonably equivalent alternative. This approach is supported by the Belgian Competition Authority (BCA), which is of the view that the second condition reflects circular reasoning, as it does not involve economic dependence but relates to the assessment of abusive conduct which, as noted, is the second condition for a finding of abuse of economic dependence.

Second, the Report recommends clarifying the concept of economic dependence by:

(i)    elaborating on the factors pointing to its existence such as:

• the significant contribution of one firm to the turnover of another firm – for example when should this contribution be determined (at the conclusion of the contract and/or during the commercial relationship)?;
• access to technology or essential resources, with concrete examples of situations in which such access may give rise to economic dependence;
• whether the firm has knowingly placed itself in a position of economic dependence;

(ii)   clarifying that contextual elements must be considered (such as the timing of order cancellations or refusals to supply, the specific needs of the supposedly dependent firm, and the sector concerned); and

(iii)  providing concrete examples of different forms of economic dependence.

Third, the Report recommends clarifying the scope of application of the concept of abuse of economic dependence by codifying the case law of the Supreme Court. For example, that court held that abuse of economic dependence may also be invoked outside a contractual relationship (see, VBB on Belgian Business Law, Volume 2025, No. 4).

2. Abuse

First, the Report calls for the development of an indicative list of concrete examples of abusive practices. That list should be updated in light of case law and the decision-making practice of the BCA.

Second, it recommends examining whether guidance can be provided on how to assess the abusive nature of conduct, taking into account (i) the framework applicable to abuse of dominance; (ii) the doctrine of abuse of rights; and (iii) the principles governing unfair market practices.

This recommendation is intended to overcome the divergence between the approach of the BCA which is of the view that the abuse of economic dependence should be assessed in line with the requirements applicable to abuse of dominance and that of specific courts which analyse such conduct instead through the lens of abuse of rights or unfair market practices.

3. Facilitating proof of impact on competition

The Report proposes to ease the burden of proving an actual or potential restriction of competition on the Belgian market (or a substantial part) by:

• clarifying the scope of this condition in consultation with the BCA; and
• exploring the development of a standardised analytical framework based on objective criteria, such as market shares, barriers to entry, and market structure.

4. Strengthening deterrent effect of sanctions

Sanctions for abuse of economic dependence are currently capped at 2% of national turnover, which contrasts sharply with the regime applicable to other competition law infringements, according to which fines may reach 10% of worldwide turnover and periodic penalty payments may amount to 5%. In light of this discrepancy, the Report wonders whether the current level of sanctions is adequate.

5. Assessing whether abuse of economic dependence should qualify as an unfair market practice

Finally, the Report recommends assessing the desirability of incorporating the regime on abuse of economic dependence into Book VI of the CEL, which governs market practices.

This proposal stems from interpretative difficulties regarding the requirement that abusive conduct should have an impact on competition. Reclassifying abuse of economic dependence as an unfair market practice could shift the focus towards the protection of individual firms, regardless of the effect of the targeted conduct on competition.

However, the BCA has expressed opposition to this view. It argues that abuse of economic dependence is inherently part of competition law, and that a possible reclassification as an unfair market practice would create legal uncertainty by subjecting the same conduct to different legal regimes based on distinct conditions.

Assessment

The Report is premised on the idea that the rules governing abuse of economic dependence are desirable, will increase competition, and will thus stimulate growth and innovation for the benefit of consumers. However, that assumption is not a given and the Report made no attempt to study it. Instead, the Report argues that the rules at issue pursue what it refers to as a “necessary compromise between the freedom of enterprise and the need for norms to prevent and penalise abuses” (Report, at p. 5). However, the question arises whether pursuing this holy grail is not another step towards a dirigiste economy and emblematic of what ails European economies that suffer from a lack of entrepreneurial liberty. It is hoped that Parliament will ask itself that question when reviewing the Report