Publication date
20 March 2023
By judgment of 27 October 2021, the French-speaking Business Court of Brussels asked the Belgian Competition Authority for its written observations concerning a dispute in the telehealth sector.
The question was whether the company's refusal to license a patented communication protocol to the company Victrix for communication between telecare devices and platforms infringes Article IV.2 of the CEL and Article 102 TFEU (abuse of dominant position) and/or Article 2/1 CEL (abuse of economic dependence).
Tunstall supplies reception units and platforms, i.e. telecare software, to organisations running call centres such as Télé-Secours, which in turn provide telecare services to elderly or vulnerable people wishing to remain in their own homes. Tunstall owns a patented communication protocol that allows reception units to communicate with the platforms. Victrix provides a competing telecare platform which Tele-Secours decided to use as a replacement for Tunstall's platform. Since then, Tunstall was concerned that Victrix would use the patented communication protocol to connect its own platform to Tele-Secours' customer care units that operate with the patented communication protocol. It therefore refused to grant Victrix a licence to use the patent protecting the protocol.
The BCA told the Court that a refusal by a dominant company to license the communications protocol may constitute an abuse if certain strict conditions are met. The BCA also examined Victrix and Télé-secours' claim that Tunstall's refusal was discriminatory because Tunstall had granted a licence to Victrix's competitors. Finally, the CBA analysed whether Tunstall's behaviour could constitute an abuse of economic dependence towards Victrix on the one hand and Télé-secours on the other.
By judgment of 26 July 2022, the Court decided that Tunstall abused the position of economic dependence of Victrix and Télé-Secours.
The request of the Court is based on Article IV.88 CEL which allows Belgian courts and tribunals to request an opinion on the application of competition law to the BCA.
The question was whether the company's refusal to license a patented communication protocol to the company Victrix for communication between telecare devices and platforms infringes Article IV.2 of the CEL and Article 102 TFEU (abuse of dominant position) and/or Article 2/1 CEL (abuse of economic dependence).
Tunstall supplies reception units and platforms, i.e. telecare software, to organisations running call centres such as Télé-Secours, which in turn provide telecare services to elderly or vulnerable people wishing to remain in their own homes. Tunstall owns a patented communication protocol that allows reception units to communicate with the platforms. Victrix provides a competing telecare platform which Tele-Secours decided to use as a replacement for Tunstall's platform. Since then, Tunstall was concerned that Victrix would use the patented communication protocol to connect its own platform to Tele-Secours' customer care units that operate with the patented communication protocol. It therefore refused to grant Victrix a licence to use the patent protecting the protocol.
The BCA told the Court that a refusal by a dominant company to license the communications protocol may constitute an abuse if certain strict conditions are met. The BCA also examined Victrix and Télé-secours' claim that Tunstall's refusal was discriminatory because Tunstall had granted a licence to Victrix's competitors. Finally, the CBA analysed whether Tunstall's behaviour could constitute an abuse of economic dependence towards Victrix on the one hand and Télé-secours on the other.
By judgment of 26 July 2022, the Court decided that Tunstall abused the position of economic dependence of Victrix and Télé-Secours.
The request of the Court is based on Article IV.88 CEL which allows Belgian courts and tribunals to request an opinion on the application of competition law to the BCA.
