On 25 June 2015, the Netherlands Authority for Consumers and Markets ("ACM") adopted several decisions sanctioning natural vinegar producers Burg and Kühne (the "Parties") as well as five of their (former) employees for participating in a cartel. This case reconfirms that the ACM does not shy away from imposing relatively high fines on individuals (up to Euro 135,000 in the case at hand) for cartel infringements. Moreover, this is the first time the ACM adopted a cartel settlement EU Commission-style. While there is no published ACM policy on cartel settlement decisions yet, it is expected that the ACM will announce its approach to cartel settlements later this year.
In the period between 2001 and 2012, the vinegar producers coordinated their prices with the intention to maintain their mutual volume ratios with respect to customers shared by both companies. Where it concerned non-shared customers, the Parties agreed to respect existing customer relationships. These cartel arrangements applied only to a limited number of customers. The Parties also exchanged commercially sensitive information on prices and production to further the cartel.
The cartel arrangements between the Parties came to light after Kühne applied for leniency in November 2012. As a result, Kühne was granted full immunity and avoided a fine of EUR 4.6 million. The ACM imposed a fine of EUR1.8 million on Burg.
The ACM also imposed fines on employees of both companies for exercising de facto leadership over the cartel infringements. The behaviour that constituted the de facto leadership varied from implementing the actual coordination to refraining from ending the infringements. The ACM's decision to impose fines on individuals involved in the cartel behaviour is in accordance with the ACM's published policy but in practice the ACM also continues to issue cartel decisions without imposing fines on the individuals involved.
The fines ultimately imposed on two of Burg's employees amounted to EUR 16,000 and EUR 54,000 respectively. The ACM applied an increase of 20% to the fine of one of the Burg employees, for refusing to cooperate. This individual had invoked his alleged right not to answer questions from the ACM. However, the ACM was of the view that he had no such right in the given circumstances. Originally the ACM intended to prosecute this person individually for this breach. Ultimately the issue of the lack of cooperation was also settled as part of the package. The Kühne employees escaped penalties varying between EUR 22,500 and EUR 135,000, as Kühne's leniency application was also submitted on behalf of the employees.
Interestingly, all fines imposed by the ACM were reduced by 10%, as the Parties including their employees successfully engaged in settlement discussions with the ACM after it sent its statement of objections. Although there is no official framework for cartel settlements in the Netherlands, the ACM seems to have taken on board the EU Commission settlement regime. Opting for settlement, the Parties and the employees each submitted to the ACM a written settlement request containing:
- A clear and unequivocal acknowledgment of liability for the infringements.
- Acknowledgment of the facts and circumstances as well as the legal qualifications thereof in the ACM's statement of objections.
- Acceptance of the administrative fine and the underlying method of setting the fine.
- A confirmation that the Parties were given sufficient opportunity to: i) make their views known to the ACM and ii) access the file.