On 13 August 2015, the District Court in Rotterdam upheld the decision of the Netherlands Authority for Consumers and Markets ("ACM") ruling that the cooperation between three Dutch banks in the joint venture Geldservice Nederland ("GSN") did not infringe competition rules. GSN was created by the three largest Dutch banks ABN AMRO, ING and Rabobank with the purpose of bundling their cash processing services and jointly purchasing transportation services.
Brink's, a company offering cash processing and transportation services, had lodged a complaint about the initiative with the ACM. The ACM rejected Brink's complaint and decided that the cooperation did not restrict competition. In interim civil proceedings, a civil court also rejected Brink's complaints in the context of a tender of GSN for the joint purchase of cash transportation [see our February 2014 newsletter article].
On appeal, the District Court confirmed the ACM's decision. The District Court considered that the ACM was right to qualify the bundling of the cash processing services as a joint production agreement, as defined in the European Commission Guidelines on horizontal cooperation agreements (the "Guidelines"). On the basis of the Guidelines, the Court considered that the object of the cooperation was to achieve efficiency gains by economies of scale. The conditions for restrictive effects did not apply in this case, among others because the banks did not cooperate on the commercial terms of the services. Also, the Court followed the ACM's finding that the market structure for cash processing services is not susceptible to collusion, as customers for this service generally purchase a wider package of products and services and may switch to another bank for all their products and services in case of a price increase of cash processing services.
With regard to the joint purchase of transportation services the Court confirmed, again on the basis of the Guidelines, that joint purchasing generally has the potential to lead to efficiency gains. In this case restrictive effects on the downstream market for banking services were unlikely, among others because the costs for transportation services form only a small share of the banks' total costs for banking services. Foreclosure effects were also unlikely considering that GSN was open to non-participating banks and the remaining suppliers on the market for cash transportation services like Brink's.
The judgement confirms that Dutch courts tend to follow closely the Commission's Guidelines in competition matters. On the basis of these Guidelines joint purchasing agreements can generally be considered compatible with the competition rules provided that generated efficiencies will likely be passed on to customers.