On 11 March 2015, the Brussels Court of Appeal confirmed the conditional clearance decision adopted by the Belgian Competition Authority ("BCA") in a merger case involving the roadside assistance and road safety sector.
The judgment was issued following an appeal lodged by VAB, VAB Rijschool and Rijscholen Sanderus – companies which offer roadside assistance and driving lessons in Belgium. The companies contested the BCA's decision to conditionally clear the acquisition by Koninklijke Belgische Touring Club ("Touring"), a Belgian roadside assistance and insurance company, of Autoveiligheid and its subsidiary Bureau voor Technische Controle, companies organising technical inspections of motor vehicles and driving tests. On 24 October 2013, the BCA cleared the merger on the condition that Touring would separate its commercial activities from the regulated activities of the target companies.
In the judgment, the Court rejected the applicants' arguments that the conditions imposed by the BCA on the merger: (i) should have been structural rather than behavioural; (ii) could not alleviate the BCA's competitive concerns; and (iii) could not be monitored.
The Court justified its decision by noting that the BCA:
- prohibited the promotion of commercial activities through regulated activities; and
- imposed the creation of "Chinese walls" in order to prevent the disclosure of confidential information concerning the users of the technical inspection and testing centres to the companies of the group that carry out commercial activities.
Furthermore, the Court stressed that the conditions imposed by the BCA are not only operational but also structural: i.e., the board of directors of the group's holding company must appoint at least two independent directors who are not involved in any activities related to compulsory vehicle insurance or driving lessons, as required by the legislation applying to technical vehicle inspections. These independent directors can jointly veto any decision in relation to the independence requirements and serve on the board of directors of the target companies together with the CEO (who also complies with the legislation on technical inspections of vehicles). The Court found that these conditions, which took into account possible conglomerate effects, were sufficient to eliminate the BCA's competitive concerns.
Finally, the Court noted that, contrary to the applicants' claims, the measures imposed by the BCA were sufficiently concrete to be implemented by Touring and could be monitored by the BCA even though such monitoring is not provided for in the decision. As a result, it dismissed the appeal in its entirety. The applicants still have the possibility to lodge an appeal against this judgment, limited to points of law, before the Belgian Supreme Court.
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