On 24 March 2016, the Dutch Trade and Industry Appeals Tribunal ("CBb") handed down two judgments on appeal in which it upheld decisions to fine onion growers for participating in a cartel. Notably, the CBb confirmed that the Netherlands Authority for Consumers and Markets ("ACM") is allowed to determine cartel fines by taking into account a company's EU-wide turnover, and not just its turnover generated in the Netherlands.
On 25 May 2012, the ACM imposed a total of EUR 9.3 million in fines on six companies involved in the growing and trading of onions for operating a cartel. The ACM found that the companies had agreed on adjusting production capacities, joint purchasing of operating assets from competitors and exchanging information about prices applied to their customers. These agreements amounted to a single and continuous infringement that lasted from 1998 until 2011.
Noteworthy was that the ACM calculated the basic amount of the fines by taking into account the EU turnover figures of the companies, instead of limiting this to the companies' national turnover. The companies appealed the fines before the District Court of Rotterdam, which dismissed the appeals [see our April 2014 newsletter].
In the first judgment, the CBb upheld the ACM's calculation of the fine. The CBb considered that neither Dutch nor European law contains a territorial restriction concerning the calculation of fines, at least not within the limits of the internal market. Citing the Court of Justice's Innolux judgment the CBb clarified that the jurisdiction to calculate fines should be distinguished from the territorial jurisdiction to enforce the cartel prohibition.
In its second judgment, the CBb ruled on the division of liability between two parent companies of a subsidiary that was participating in the cartel. Company A was the parent company during part of the cartel period. While the cartel was still in place, the subsidiary was acquired by parent company B. On the basis of the presumption of parental liability established in the Court of Justice's Akzo judgment, the ACM held parent company A liable for its subsidiary's participation during part of the cartel period. The subsidiary was only held jointly liable together with company B, for the part of the cartel period when it was part of this new parent company.
Parent company A objected to this division of liability, arguing that it was not reasonable that it alone had to pay the fine for a part of the infringement, while its former subsidiary could share this liability with its new parent company B. However, the CBb sided with the District Court and dismissed the appeal, considering that this division of liability was "not less unreasonable". The case shows that the ACM can hold a parent company liable for a part of a cartel infringement committed by its former subsidiary, without the subsidiary itself being held liable for that part of the infringement.