On 5 November 2015, the Competition College of the Belgian Competition Authority ("BCA") adopted provisional measures involving television broadcasting rights in the Superprestige Cyclocross Competition to address a possible infringement of Article IV.1 and/or Article IV.2 of the Code of Economic Law (the Belgian equivalents of Articles 101 and 102 TFEU).

The organiser of the event, v.z.w. Verenigde Veldritorganisatoren (the "Organiser") and Telenet had concluded an agreement granting exclusive television broadcasting rights to Telenet for the Superprestige Cyclocross Competition for 5 years. Telenet's main competitor, Proximus, filed a complaint with a request for provisional measures before the BCA.

To determine the merits of the request for provisional measures, the Competition College analysed both:

(i) the existence of a prima facie infringement of Article IV.1 and/or Article IV.2 of the Code of Economic Law; and

(ii) the urgent need to avoid a situation, likely to cause a serious, imminent disadvantage that is difficult to repair to undertakings whose interests are affected by the practices, or which is likely to harm the general economic interest.

(i) Prima facie infringement

The Competition College noted that, in order to justify a suspension of the alleged anti-competitive practices, it is necessary to ascertain first whether the complaint seems to be prima facie sufficiently meritorious. This implies the need to determine whether it would be manifestly unreasonable to consider the facts as an infringement.

Taking into account the exclusive broadcasting rights that Telenet had already acquired for the "UCI Worldcup" cyclocross races, the Competition College found it was not manifestly unreasonable to assume that, by acquiring broadcasting rights for the Superprestige Cyclocross Competition as well, Telenet had obtained a dominant position on the market for the acquisition of broadcasting rights in cyclocross. However, the Competition College also noted that concluding an agreement which creates a dominant position does not qualify as a prima facie abuse of a dominant position in that market since such an abuse would require a pre-existing dominant position.

Nevertheless, the Competition College reasoned that this conduct may constitute a breach of Telenet's duty of diligence as a dominant undertaking on the retail market for the provision of television services, as it might lead to a strengthening of its dominant position on this market. In this respect, the Competition College noted that, by concluding a cooperation agreement for a long period of time that had come into effect without a prior bidding procedure, Telenet deprived Proximus of the possibility to acquire broadcasting rights for the Superprestige Cyclocross Competition. The Competition College added that it is not manifestly unreasonable to conclude that the facts may constitute a breach of Article IV.2 of the Code of Economic Law.

Regarding the alleged infringement of Article IV.1 (1) of the Code of Economic Law, the Competition College considered that, by its exclusive nature, duration and lack of a transparent and non-discriminatory bidding procedure, the cooperation agreement between Telenet and the Organiser may restrict competition significantly. According to the Competition College, it is therefore not manifestly unreasonable to conclude that the agreement may constitute an infringement within the meaning of Article IV.1 (1) of the Code of Economic Law.

(ii) Avoidable disadvantage

The Competition College then turned to the question whether the conditions to adopt interim measures, as set out in Article IV.64 (1) of the Code of Economic Law, were satisfied. These conditions are: the existence of a (i) serious and (ii) imminent disadvantage which is (iii) difficult to repair, and (iv) avoidable.

The Competition College found that the exclusion from the live broadcast of the Superprestige Cyclocross Competition by a long-term exclusive agreement, concluded in the absence of a transparent and non-discriminatory bidding procedure, within a geographic market in which that sport is popular and attracts a high audience, constitutes a serious disadvantage for Telenet's competitors. The disadvantage consists not only in a loss of audience during the broadcasting of competitions, but also in a loss of advertising revenues and carriage fees, as well as in a loss or weakening of credibility as a sports channel.

Since Proximus is now excluded from the opportunity to acquire broadcasting rights for the seasons 2016-2017 to 2019-2020, the Competition College found that the disadvantage suffered by Proximus satisfies the requirements of seriousness and imminence.

The Competition College pointed out that the financial consequences of a loss of subscribers of Proximus to the benefit of Telenet can in principle be estimated and compensated at a later stage. However, the damage resulting from a loss or weakening of credibility, and the loss arising from the fact that the churn rate of Telenet to the benefit of Proximus will become even smaller, are more difficult to estimate and to recover with a post factum financial compensation. The Competition College therefore found that the disadvantage would be difficult to repair within the meaning of Article IV.64.

The Competition College also recalled that the disadvantage must not only be difficult to repair, but should also be avoidable. The Competition College concluded that the disadvantage in this case was avoidable, as non-exclusive agreements may still be entered into and a transparent and non-discriminatory bidding procedure may still be organised, for the 2016-2017 season and following seasons.

As a result, the Competition College ordered the Organiser to choose within one month between:

  • suspending the exclusivity clause until a final decision is taken on the complaint, in which case the Organiser must offer the rights to interested parties at reasonable conditions; or
  • setting up a transparent and non-discriminatory bidding procedure allowing for the granting of rights until a final decision is taken on the complaint.

The Competition College dealt with the request for interim measures. It will now have to examine the merits of the initial complaint and confirm or overrule its preliminary findings.

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