On 20 November 2024, the Brussels Court of Appeal handed down its judgment in the appeal of the Royal Belgian Billiard Federation (RBBF) against the cease-and-desist judgment of the president of the Enterprise Tribunal of Leuven. Earlier this year, the Belgian Competition Authority (BCA) published the cease-and-desist judgment and its expert opinion in the case. The dispute concerned the exclusivity agreements that the RBBF concluded following a tender organised in execution of an earlier lawsuit against the RBBF (First Billiard Case – see here).

First Billiard Case

Back in November 2021, the RBBF was found to have infringed the prohibition on anticompetitive agreements and to have abused its dominant position by concluding exclusivity contracts in the absence of an objective, non-discriminatory, and transparent tender. The contracts concerned two four-year exclusivity agreements (including exclusive advertising) with a supplier of carom billiard balls and billiard tables for the high-profile national billiard competitions that the RBBF organises.

Following an appeal by the RBBF, the Brussels Court of Appeal ruled on 24 January 2024 that the existence of the dominant position of the RBBF had not been sufficiently proven[1] but confirmed that the RBBF had infringed the prohibition on anti-competitive agreements by concluding long-term and exclusive sponsorship agreements with two manufacturers of billiard supplies without organising an objective, transparent, and non-discriminatory tender procedure.[2]

Second Billiard Case

In executing the judgment in the First Billiard Case, the RBBF organised two tenders – one to sponsor billiard balls and one to sponsor billiard tables – and concluded an exclusive sponsorship agreement with the selected companies for a period of four years. GDM Sports, which acquired Hector Cue Sports Belgium, the applicant in the First Billiard Case, again did not win the tender and was therefore not able to sponsor the billiard balls in the competitions organised by the RBBF for the next four years.

GDM Sports had serious doubts about the objectivity and transparency of both the process and the outcome of the two newly organised tenders. It therefore brought a challenge claiming that the tenders were not “objective, transparent, and non-discriminatory” and that the RBBF had thereby infringed the prohibitions on anti-competitive agreements and abuse of a dominant position.

The Case at First Instance

The President of the Leuven Enterprise Tribunal, who delivered the judgment in the First Billiard Case, now had to rule on the compatibility of the two tenders organised in execution of that judgment with competition law. As in the First Billiard Case, the judge requested the BCA to comment as a so-called “amicus curiae” on the action brought by GDM Sports against the RBBF from a competition law perspective.

When a court or tribunal requests an expert opinion from the BCA as “amicus curiae” (i.e. friend of the court), the BCA does not become an intervening party in the dispute but only comments on the application of competition law to the case.[3] While expert opinions of the BCA are not legally binding for judges, they often provide important guidance on the application of competition law and are highly authoritative for judges in practice.

In its expert opinion, the BCA assessed the process and the outcome of the RBBF's two tenders under competition law. The BCA provided factual elements that the judge may consider when determining whether the tenders of the RBBF are “objective, transparent, and non-discriminatory” and therefore in compliance with competition law.

Following the second expert opinion of the BCA, the judge held that the RBBF had violated the prohibition on anti-competitive agreements by:

1. concluding exclusive sponsorship agreements based on a tender that does not meet the criteria of objectivity, transparency and non-discrimination;
2. entering into excessively long exclusive sponsorship arrangements (here, four years); and
3. granting exclusive rights to the selected companies beyond the scope of the two tenders at hand, by for example featuring the logos of the selected companies on its website, and therefore without organising a prior separate tender for this purpose.

As a result, the judge ordered the RBBF to cease the anti-competitive practices and emphasised that it had to organise an objective, transparent, and non-discriminatory tender “according to the state of the art”.

The Case on Appeal

On appeal, the RBBF argued that competition law did not apply to the organisation of a sports competition. The Court of Appeal disagreed, and referred to the judgment of the Court of Justice of the European Union (CJEU) in the European Superleague case (see here and here) in ruling that competition law applies to sports as long as it concerns an economic activity.

The Court of Appeal also clarified the exact meaning of an objective, transparent, and non-discriminatory tender. According to the Court, such criteria prevent the contracting authority from exercising its decisional power in an arbitrary and discretionary manner, thereby avoiding conflicts of interest.

The Court found that the tender criteria of ‘reliability’ and ‘loyalty’ in the present case were subjective and non-transparent, allowing the RBBF to artificially restrict competition by designing the tender to unduly favour its preferred companies.

Key Takeaways for Tenderers and for Sports Federations

The case underscores that the requirements of an “objective, transparent, and non-discriminatory” tender must be effectively fulfilled at all stages of the tender process to comply with competition law. Both the judgments and the expert opinion of the BCA highlight that the effects, rather than the form, are decisive in analysing whether these requirements are met. 

To that end, the case serves as a reminder of the following best practices when organising a tender:

1. Do not take into account any criteria other than those mentioned in the call for tender.
2. Ensure that the duration of the contracts is based on objective parameters (e.g., the lifecycle of the product at hand). This applies in particular to exclusivity agreements concluded for several years that may restrict third-party access to the market during that period.
3. Generally, as repeatedly stated in the judgment, tenders must be organised “according to the state of the art” to avoid anti-competitive effects and an infringement of the prohibition on anti-competitive agreements.[4] This requires the tender to be effectively objective, transparent, and non-discriminatory.

Finally, the case provides further guidance to sports federations, which are increasingly being scrutinised by competition authorities, as evidenced by the three judgments of the CJEU of 21 December 2023 (see here).

In the European Superleague case (C-333/21), the CJEU dealt with the application of EU and competition law to the rules of FIFA and UEFA on the approval of new competitions. A similar issue arose in the International Skating Union case (ISU – C-124/21 P), where participation in third-party competitions not approved by the ISU led to a lifetime ban from any ISU-organised competition. Finally, the Royal Antwerp Football Club case (C-680/21) concerned the legality of UEFA and the Belgian Football Association's Homegrown Player Rule, which requires a minimum number of football players trained within a club in the national competition to be on the match sheet. 

The expert opinion of the BCA reminds us that sports federations, on the one hand, operate as sports regulators and, on the other hand, carry out economic activities such as organising sports competitions, for which they have a dominant position and therefore have a “special responsibility” not to restrict competition. This “special responsibility” means that sports federations cannot favour certain market players over others and cannot deny market access to companies unless this is based on objective, transparent, and non-discriminatory criteria that are sufficiently precise.

If you need more information or further guidance in this area, please contact Baptist Vleeshouwers and David Wouters.

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 [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] The “amicus curiae” mechanism also allows the BCA to intervene on its own motion in a case pending before a court or tribunal (Article IV. 88, §1 Belgian Code of Economic Law).

[4] This includes, according to the expert opinion of the BCA, that: “in the light of its decisional practice and the jurisprudence of the Market Court, account can be taken of the possible premium nature of the three championships in question, the existence of fully-fledged alternatives for competitors, the market position of the chosen suppliers (in particular Saluc), the duration of the contracts, the possible absence of an objective, non-discriminatory and transparent bidding procedure and the resulting exclusionary effects on the downstream market”.