In a judgment delivered on 19 November 2020, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés) (the Markets Court) annulled the decision adopted on 29 June 2020 by the Competition College (Mededingingscollege / Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit / Autorité belge de la Concurrence - the BCA) refusing to grant the interim measures requested by Belgian football club Royal Excelsior Virton (Virton) against the Royal Belgian Football Association (the RBFA) (See, thisNewsletter, Volume 2020, No. 6, p. 6, and Volume 2020, No. 7, p. 3).
RBFA had refused to issue a new operating licence to Virton because that club did not comply with the continuity principle. Virton was instead relegated to a lower tier in the competition. Virton complained to the BCA that RBFA had restricted competition and requested interim measures. The Competition College of the BCA rejected this request. The BCA found that, although subjecting the participation in the championship to the condition of obtaining a licence and requiring that the clubs concerned comply with the continuity principle may restrict competition, these conditions seem prima facie to pursue the legitimate objective of allowing an orderly competition. The BCA also considered that the application of the continuity principle was proportionate and legitimate to the objective pursued. While “it cannot be prima facie excluded” that some criteria applied by the RBFA are problematic, the BCA found that Virton did not establish that it would have satisfied the conditions to obtain a licence absent these problematic criteria.
The Markets Court found that the BCA could not consider that “it cannot be prima facie excluded” that some criteria used by RBFA are disproportionate in relation to the objective pursued, while maintaining that it is not prima facie established that Virton would have satisfied the criteria to obtain a licence absent these problematic criteria. These assertions were made in circumstances in which Virton had proven that it does not have social security debts or debts vis-à-vis third parties. In addition, the BCA acknowledged that the assessment of a request for a licence infringes competition law if it is carried out based on excessively rigid criteria. According to the Markets Court, it was therefore necessary for the BCA to rule on this issue and determine if the criteria were effectively disproportionate and therefore prima facie illegal. The Markets Court held that the BCA could have explained in its decision that the RBFA’s conditions were disproportionate but that these conditions were nevertheless satisfied, and that, prima facie, Virton would therefore have satisfied the conditions for a licence absent the problematic conditions.
In addition, the BCA held that a sponsoring requirement included in point 17 of the RBFA’s document “could be dis- proportionate with the legitimate objective of ensuring and controlling the continuity of the football clubs” while at the same time concluding that there was no prima facie infringement of the competition rules. The Markets Court found these positions to be contradictory.
Finally, the Markets Court held that the BCA could have established that Virton satisfied the continuity principle (applied in accordance with competition law) if it had not failed to take the relevant evidence into consideration. As a result, the Markets Court concluded hat the BCA had not adequately provided reasons for its decision to refuse to grant interim measures to Virton. The Markets Court therefore annulled the BCA decision and referred the case back to the BCA.