What if a judge does not get enough information from the parties?

In complex commercial disputes, where the truth is often hidden in a tangle of contracts and data, the judge's information position is crucial. An order from the president of the Dutch-speaking enterprise court in Brussels dated 5 June 2025 shows how a judge proactively intervenes when parties fail to provide the necessary clarification. The judge not only orders the submission of crucial documents, but, given the complexity of the case, also calls upon the expertise of the Belgian Competition Authority (BMA).

The facts/legal context

The case revolves around a long-running dispute between Telenet, the well-known distributor of audiovisual services, and Agicoa, a collective management company that manages the copyright of audiovisual producers manages. At the heart of the dispute is the fee Telenet must pay for the linear retransmission of works from Agicoa's repertoire.

Since the expiration of their last agreement in 2019, the parties have failed to reach a new agreement on how to calculate the license fee.

• Telenet believes that the tariffs demanded by Agicoa are excessive and unreasonable, and argues that they constitute an abuse of dominance. Telenet argues for a model that takes more account of real economic value, such as audience ratings.
• Agicoa instead argues that Telenet is infringing its members' copyrights by continuing to exploit the repertoire without paying proper remuneration. In turn, Agicoa accuses Telenet of abusing its dominant position as a major distributor.

The result is a stalemate that has led to multiple legal proceedings, including this prohibitive injunction proceeding before the president of the court.

President's decision

The president, faced with mutual accusations of abuse of dominance and a lack of crucial information to judge it, made a remarkable decision "before justice was done." This means he is not making a final ruling yet, but first wants to investigate the case further.

The decision consists of three main elements:

1. Lack of clarification: The judge found that, despite extensive briefs, both parties failed to clarify a series of crucial questions. These questions relate to the definition of the relevant market, the criteria for the tariff proposals, the economic value of the repertoire and the substantiation of the mutual claims of abuse of power.
2. Order for submission of documents: Based on articles 19(3) and 877 of the Judicial Code , the judge orders both parties to file a list of specific, confidential documents by a set deadline. These include negotiation documents, contracts with other parties (so-called "ARI agreements"), and internal allocation keys. To ensure the confidentiality of these trade secrets, the existing confidentiality circle is extended.
3. Engaging the Belgian Competition Authority (BMA): The judge recognizes that he has insufficient economic expertise to assess the complex competition law arguments. Therefore, he suspends the proceedings and avails himself of the option provided by Article IV.88 of the Code of Economic Law . He requests written comments from the BMA on the issues of relevant markets, alleged dominant positions and possible abuses.

Legal analysis and interpretation

This interim ruling is legally significant for several reasons.

First, she illustrates the active role of the judge and the obligation for parties to cooperate loyally in the evidence, a principle recently codified in Article 8.4 of the Civil Code. The judge will not accept a passive attitude and will compel the parties, by means of an order to submit documents, to lay the cards on the table that are necessary for him to form his opinion.

Second, the decision shows the ever-increasing interconnectedness between intellectual property rights and competition law. The determination of a "fair" copyright remuneration is no longer a purely contractual matter, but is reviewed under the rules on abuse of power (Article IV.2 CEL and 102 TFEU).

The most striking element, however, is the involvement of the BMA. This is a tool that judges do not often use, but is invaluable in cases of high technical and economic complexity. Indeed, the BMA, as a regulator, is the most qualified body to conduct an objective analysis of market definitions and anti-competitive behavior. Her written comments, although not strictly binding, will have a very weighty influence on the judge's final decision.

What this specifically means

• For Telenet and Agicoa: The stakes have been raised significantly. The case will no longer be decided solely on legal arguments, but will shift to an in-depth economic analysis supervised by the BMA. Both sides will have to back up their positions with robust economic data. The BMA's final opinion may determine negotiating positions for years to come.
• For other distributors and management companies: This ruling sets an important precedent. It signals that courts are willing to involve the BMA in disputes over the fairness of license fees. This may have an impact on all future negotiations in the industry and may encourage parties to better economically justify their rate structures.
• For companies with a strong market position: The message is clear. An abuse of dominance claim, whether as plaintiff or defendant, requires thorough preparation and solid evidence. A lack of transparency or cooperation can be punished by the court by invoking outside expertise, which can lead to unpredictable and far-reaching consequences.

FAQ (frequently asked questions)

Is the judge's decision in this case final?
No, this is an interlocutory judgment. The judge is not yet ruling on the merits of the case. He suspends the proceedings pending the submission of the documents and the written comments of the Belgian Competition Authority.

Is the opinion of the Competition Authority binding on the court?
Formally, the BMA's opinion or comment is not binding. In practice, however, it has very strong authority. A judge will only depart from the specialized regulator's economic analysis with a very strong and well-reasoned justification.

What is a confidentiality circle and why is it important here?
A confidentiality circle is a court-appointed group of individuals (usually the lawyers and a limited number of designated representatives of the parties) who are given access to confidential business information of the opposing party. This is essential in cases such as this one, where sensitive information such as contract terms and fee structures must be shared to allow the court to adjudicate without making these trade secrets public.

Conclusion

This ruling is a masterful illustration of modern procedural law in action. The president refuses to rule on the basis of incomplete information and assumptions. By combining an order for submission of documents and the involvement of the Competition Authority, he encourages the parties to be fully transparent and ensures that the final decision will rest on a solid legal as well as economic basis. This is a clear warning to all players in regulated and complex markets: a well-founded file is not an option, but an absolute necessity.