Abuse of economic dependence does not require contractual relationship
On 20 February 2025, the Belgian Supreme Court confirmed that under Belgian law an abuse of economic dependence may be found even in a situation where there is no contractual relationship between the companies involved. This clarification is to be welcomed.
In 2020, Belgium added new provisions to its Code of Economic Law (CEL) prohibiting the abuse of economic dependence (see Article IV.2/1 CEL). According to Article I.6, 17° of the CEL, economic dependence is defined as “the position of subordination of a company vis-à-vis one or more other companies characterised by the absence of a reasonably equivalent alternative available within a reasonable time and at reasonable conditions and costs, which enables the latter or each of the latter to impose services or conditions that could not be obtained under normal market conditions”.
Unlike the concept of ‘dominance’ (defined as the power of an undertaking to behave to an appreciable extent independently of its competitors, customers and ultimately of its consumers), the concept of ‘economic dependence’ does not require evidence of such dominance. Instead, this concept focuses on the relative subordinate position of an undertaking in relation to a particular counterparty that has market power within that particular relationship.
Prior to the Belgian Supreme Court’s ruling, there was much debate as to whether an abuse of economic dependence could be found in a non-contractual context or whether it necessarily required the existence of a contractual relationship between the companies involved. In its judgment of 20 February 2025, the Belgian Supreme Court put an end to this debate and confirmed that a situation of economic dependence does not require a contractual relationship between the parties concerned.
The Supreme Court gave its ruling in a dispute between Tunstall on the one hand and Télé-Secours and Victrix, on the other. The case lies at the intersection of intellectual property and competition law. Télé-Secours relied on technology developed and patented by Tunstall to provide telecare services to elderly and vulnerable people. At some point, Télé-Secours became dissatisfied with Tunstall’s delays in delivering an updated platform and sought to engage Victrix, a Spanish company, as an alternative provider. Tunstall refused to grant Victrix a license for its old technology (although it had granted licences to other companies competing with Victrix in Belgium). Finally, when Télé-Secours attempted to replace Tunstall’s software with software developed by Victrix, Tunstall initiated legal proceedings alleging patent infringement by both Victrix and Télé-Secours.
In response, Victrix and Télé-Secours filed a counterclaim asking the court to order Tunstall to grant a licence to use its patent. In particular, they argued that Tunstall’s refusal to grant such a licence constituted an abuse of economic dependence. While the first instance court sided with Victrix and Télé-Secours, this decision was later overturned on appeal. In particular, the Brussels Court of Appeal held that there could be no situation of economic dependence between Victrix and Tunstall, as there was no contractual relationship between them.
However, the Supreme Court overturned this decision, stating that a contractual relationship is not a prerequisite for a finding of economic dependence, as the law does not contain such a condition.
