Belgian Competition Authority publishes amicus curiae on abuses of dominance and of economic dependency in the telehealth sector

On 20 March 2023, the Belgian Competition Authority (BCA) published the amicus curiae rendered in an injunction action brought before the Business Court of Brussels by Tunstall against Victrix in the telehealth sector. Based on BCA’s amicus curae and the facts at hand, in July 2022 the Business Court rejected the claim of abuse of dominance due to the absence of Tunstall’s dominant position, but ruled that Tunstall was abusing the position of economic dependence of Victrix and Télé-Secours.

Tunstall supplies telecare software to call centres such as Télé-Secours, which offer telecare services to elderly or vulnerable people at their home, and owns a patented communication protocol that allows reception units to communicate with the platforms.

Victrix also has a telecare platform, which is used by Tele-Secours as a replacement for Tunstall's services. Tunstall refused to grant Victrix a licence to use the patent that protects the protocol.

Victrix challenged this refusal before the Business Court of Brussels, which asked the BCA in a judgment on 27 October 2021 to provide an opinion on the potential infringement of Article IV.2 of the Code of Economic Law (CEL) and Article 102 TFEU (abuse of dominance) and/or Article 2/1 CEL (abuse of economic dependence).

In its amicus curae of 25 January 2022, the BCA first recalled the relevant legal framework and the facts of the case. It then assessed the potential impact of the alleged infringement on trade between Member States, which was confirmed due to the international dimension of Tunstall and the Spanish origin of Victrix.

The BCA then defined the concerned markets, which is an essential step in the assessment of dominance and economic dependency.

Regarding the alleged abuse, the BCA referred to the well-known Magill, IMS Health, Bronner and Tiercé Ladbroke jurisprudence on a refusal to grant a license.  The opinion highlighted the fact that a refusal by a dominant company to license the communications protocol may constitute an abuse if certain strict conditions are met. The BCA then described the practical steps of the analysis to establish the existence of an abuse in the case at hand. These include the following:

• Are there alternative protocols?
• Could Victrix use those alternative protocols to connect the reception units already installed at the users?
• Is the access to the reception units largely controlled by Tunstall?

The BCA also addressed the analysis of the elimination of competition, the lack of objective justification of Tunstall’s behaviour and the discriminatory character of Tunstall's refusal since Tunstall had granted a licence to Victrix's competitors.

Finally, the BCA briefly analysed whether Tunstall's behaviour could constitute an abuse of economic dependence towards Victrix and Télé-secours. The BCA emphasised that a dominant undertaking should be compelled to grant a licence only in exceptional circumstances.

In its judgment of 26 July 2022, relaying on BCA’s amicus curae and the facts at hand, the Business Court rejected the claim of abuse of dominance due to the absence of Tunstall’s dominant position, but decided that Tunstall was abusing the position of economic dependence of Victrix and Télé-Secours. As a result, it granted Tunstall’s licence to Victrix under a daily penalty of EUR 10,000.

The prohibition of abuses of economic came into force in August 2020, but is still rarely applied in practice. The Code of Economic Law gives the BCA a specific competence, but the BCA has not yet adopted formal decisions or guidelines on this topic.