Belgium: Belgian Competition Authority publishes expert opinion to judge in billiard ball supply case

The Belgian Competition Authority (BCA) recently published its written comments and the judgment of the President of the Louvain Enterprises Tribunal in a case concerning exclusivity contracts in the billiard balls sector.

The case, which dates back to 2020-2021, concerned a dispute between Hector Cue Sports, a billiard attribute producer, and the Royal Belgian Billiard Federation (the RBBF). Hector Cue Sports was, at the time, a new player on the Belgian market for distribution and sale of billiard balls. The dispute revolved around two four-year exclusivity contracts granted by the RBBF for the supply of billiard balls and other attributes for certain high-profile carom billiard competitions. As part of the deals, only advertisements of the exclusive suppliers would be allowed during the tournaments covered.

Hector Cue Sports requested the President of the Louvain Enterprises Tribunal to issue an injunction against these contracts. It claimed that the RBBF had not provided it with the opportunity to compete for the agreements and that RBBF had therefore abused its dominant position on the market for the organisation and commercial operation of carom billiard tournaments.

The President requested the BCA to comment on the compatibility of the two exclusive contracts with competition law. The BCA was not party to the proceedings itself but was asked by the Judge to provide its comments as a so-called “amicus curiae” (a friend of the court). The procedure is intended to allow courts and tribunals to seek the authority’s expert opinion on the application of competition law.

Following the BCA’s written comments, the Judge held that RBBF had abused its dominant position.[1] It held that the RBBF had not given Hector Cue Sports a “real opportunity to compete” for the exclusive contracts. The Judge attached great importance to the fact that Hector Cue Sports was only invited to submit an offer three days after one of the exclusivity agreements was already signed. In addition, in its invitation to Hector Cue Sports, the RBBF had not provided any information as to the exclusivity or other conditions of the sponsorship deals. The invitation was therefore considered too vague to allow Hector Cue Sports to understand that it risked being excluded as supplier.

The President also held that the exclusive deals infringed the prohibition on anticompetitive agreements.[2] In that context, the Judge acknowledged that exclusivity is not as such contrary to competition law, but that the anticompetitive object of the agreements followed from the context in which the exclusivity was granted, including:

• the importance of the competitions for which the exclusivity was granted for advertising purposes;
• the market share of the suppliers to whom exclusivity was granted (one of which was the market leader with a market share of 85%);
• the absence of an objective, non-discriminatory and transparent tender procedure; and
• the duration of the contract compared to the lifespan of the product (four-year contract whereas billiard balls typically have a two-year life span).

Against that background, the Judge ordered RBBF to cease the anticompetitive behaviour, subject to a daily penalty payment of EUR 1,000.

Implications for sports governing bodies and contracts more generally

The case highlights that competition law applies also in more “special” areas of our society, such as sports and athleticism. It confirms that sports governing bodies must take into account the impact of their decisions on other players active in the market and must generally ensure to act in an objective, non-discriminatory and transparent manner.

Beyond the sports sector, the decision also gives guidance on the assessment of exclusivity clauses when the safe-harbour of the Vertical Block Exemption Regulation does not apply.

The BCA’s track record in billiards and sports

The BCA’s contribution in the proceedings before the President of the Louvain Enterprises Tribunal also showcases the authority’s experience in the sports sector, including the billiards sector. The comments follow the BCA’s own decision in 2020 to impose interim measures on the Belgian Golf Billiards League, the sports organising body for golf billiard.[3] The BCA ordered the BGBL either to: (i) withdraw its choice only to allow golf billiard balls of one specific brand in its federation and instead to allow all golf billiard balls that fulfilled certain objective criteria (e.g., weight, diameter, material etc.); or (ii) choose one brand of golf billiard balls following a tender for a sponsoring contract covering a maximum of two competition seasons.

More generally, the BCA has built up a significant track-record of competition law enforcement in the sports associations sector. For example, last month, we reported on its decision to impose interim measures on the Belgian Colombophile Federation regarding the definition of a standard for the technical requirements for electronic registration systems used during pigeon races. In 2020, in two separate decisions (here and here), it also imposed interim measures on the Belgian football association (URBSFA) and the Pro League concerning the relegation of Virton and Waasland-Beveren, two Belgian football clubs. It also imposed interim measures on the International Equestrian Federation in 2017 (here) but refused them in 2018 (here). Those last two cases concerned the criteria to organise sanctioned events, the calendar for equestrian events and the sanctions imposed on athletes who participate in non-sanctioned events.

For more information, please contact Baptist Vleeshouwers.

VISIT OUR COMPETITION & EU HOMEPAGE

[1] Article 102 of the Treaty on the Functioning of the European Union; Article IV.2 of the Belgian Code of Economic Law.

[2] Article 101 of the Treaty on the Functioning of the European Union; Article IV.1 of the Belgian Code of Economic Law.

[3] Golf billiard is different from carom billiards and both sports have their own sports organising body. Where the former sport is organised by the Belgian Golf Billiards League, the latter falls within the purview of the RBBF.