On 27 August 2015, the Rotterdam District Court ("District Court") upheld the Netherlands Authority for Consumers & Markets' (ACM) commitment decision that ended a probe into the collecting society Buma/Stemra. The District Court dismissed the arguments brought by an independent music maker and ruled that the ACM was right to close the antitrust probe.
The ACM's investigation into possible abuse of dominance by Buma/Stemra in music copyright management started in 2012 following a complaint by the independent music maker. In 2014, the ACM decided to close the probe on the basis of commitments offered by Buma/Stemra. These commitments were declared binding by the ACM in its commitment decision dated 3 June 2014. In the decision the ACM considered it did not find an infringement and that any potential risks to competition were removed by Buma/Stemra's commitments.
The District Court ruled that the decision complied with the applicable criteria for commitment decisions as laid down in Article 49a of the Dutch Competition Act, now replaced by Article 12h of the ACM Establishment Act (Instellingswet Autoriteit Consument en Markt). The District Court held that the commitment decision ensured that Buma/Stemra would act in accordance with the abuse of dominance prohibition and that the ACM could verify that Buma/Stemra complied with its commitments. Of particular relevance is the fact that the District Court agreed with the ACM that it was in this case more effective to issue a commitment decision instead of continuing the investigation. The District Court noted that a commitment decision allows for an immediate change of the market circumstances contrary to a long and complex procedure.
The judgment represents the first time a court has ruled upon a commitment decision concerning a potential finding of an abuse of dominance. It confirms the ACM's approach as voiced by its Chairman Chris Fonteijn who stated that, where possible, the ACM favours commitment decisions over lengthy and costly investigations. The ACM's approach in turn echoes that of the European Commission in the use of alternatives for classic fining decisions, in particular where it concerns high technology markets that are subject to rapid change. The District Court's judgment is open for appeal to the Trade and Industry Appeals Tribunal ("CBb").