The Netherlands Authority for Consumers & Markets ("ACM") will soon be able to impose a fine for a cartel infringement of at most €900,000 (instead of €450,000) or - if this amount is higher - 40% of the annual group sales (instead of at most 10%). This amount can even be doubled if it becomes clear that a company has committed a similar offence (recidivism) during a period of five years prior to this offence. This amendment has received a great deal of criticism. Not only from competition lawyers, but also from the Council of State (Raad van State) and the ACM themselves. It was pointed out in this connection that Dutch fining policy will be out of line with EU policy and policies of other countries. This amendment will nevertheless enter into force in the course of 2016.
The scope of the cartel prohibition is likely to extend further during this year as well. For example, last year the Court already confirmed in the AC-Treuhand case that companies that facilitate a cartel can be fined. In addition, companies may be liable for the conduct of third parties engaged by them. The Court will render a ruling later this year in a case concerning the liability for an external agency that was engaged to supervise the creation of offers, but which also acted for the competitor and coordinated the offers. Advocate General Wathelet suggested in his opinion to this case to apply a presumption of liability (even when the actions of the external party were not instructed and even if the client did not have any knowledge thereof). It is also interesting to see how the Dutch courts will deal with the liability of investors for cartel infringements on the part of their portfolio companies as in the flour cartel.
Refinement of the term coordinated conduct
This year, the term concerted practices will also be further refined. For example, the Court recently ruled in the Eturas case that sending a message is not sufficient for assuming that the addressee is aware of that message. This case involved a system administrator that prescribed maximum discounts to travel agencies via an online booking system. The Court of Justice found that in view of the principle of national procedural autonomy, it is up to the national courts to assess whether the addressee "was aware" of the content of the message that was sent. If that question has to be answered in the affirmative, the recipient will be deemed to have participated in mutually coordinated conduct unless it has publicly distanced itself or if it has been able to demonstrate that its market practices systematically did not take into account the content of the announcement (by systematically granting discounts). The Commission is currently investigating what this ruling means for the burden of proof in cartel cases if communication takes place via online databases.
On the European level 2016 already provided more clarity concerning information exchange. In February 2016 the Commission's investigation regarding signalling in the container lining shipping ended in the announcement of a settlement. The liner shippers have agreed to stop publishing and communicating percentage price changes under certain conditions. An European investigation into alleged manipulation of price indices in the oil and biofuels sector is still pending. ACM too, is investigating several price indices for instance in relation to the agricultural sector. And the Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven) (“CBb”) will presumably render an opinion concerning the question whether and to what extent cover pricing during tender procedures is forbidden.
Clarity concerning the single continuous infringement
There may soon be more clarity concerning the power of ACM to designate several acts as a single continuous infringement and impose a fine as if it were a single continuous infringement. This makes it easier for ACM to impose (high) fines and/or to find grounds for suspension and interruption of limitation periods for an individual infringement of competition law. ACM has pushed the limits of this doctrine in various proceedings. Examples include the fines that were imposed on in the flour market case as regards to foreclosure auctionsand in a case regarding first year onions. It is expected that the CBb will render its first ruling on this matter in the flour case.
(More) critical courts purpose limitation
Both the Dutch and the European courts are becoming increasingly critical as regards decisions in which acts are considered to restrict competition by object. Such as a consequence of the judgment in Cartes Bancaires in which the Court stressed that only if an (initial) analysis shows that an agreement between companies hinders competition to a sufficient extent there is an infringement of the cartel prohibition. A Dutch example in this context would be the annulment of the fine ACM imposed on the National Association of General Practitioners (“LHV”) regarding an alleged anticompetitive advice regarding the allocation of new general practitioners (ongeoorloofde vestigingsadviezen). The Rotterdam District Court ruled that the conduct on part of LHV was not intended to restrict competition. A recent European example is the Maxima Latvija case in which the Court held that the right of a lessee of retail space to oppose the arrival of a competitor in a shopping centre (a sector protection clause) does not restrict competition by object. This means that such provisions only qualifies as an infringement of the cartel prohibition if it can be demonstrated that this provisions could actually have a restrictive effect on competition. The standard (of proof) in these cases is, however, considerably high.
More (simplified) decisions
Last year, a novelty was introduced in the decision-making practice of ACM. When determining the fine in thenatural vinegar cartel. ACM for the first time granted a 10% discount on the fines for both the company and the natural persons (feitelijk leidingevenden) involved in this case because they expressly acknowledged the conduct. As a result, the case was settled in a simplified manner by ACM. It is expected that in 2016, ACM will settle more cases using the simplified procedure. It is reported that ACM is working on a document - based on the European version - in which ACM will elaborate on this rules of the simplified procedure. In addition, new commitment decisions and (regular) fines are expected at both the Dutch and European level. It is expected, for example, that ACM will act against companies in the building materials sector. ACM is currently also investigating several other industries. The Commission recently indicated that it is currently handling approximately 40 cartel cases. One of these cases is an alleged cartel of truck manufacturers. This means that new fines are in the offing.
For all information concerning a dawn raid by ACM and the European Commission please visit invalacm.nl