Jolling de Pree Jaap de Keijzer June 26 2014 De minimis and bid rigging: tribunal clarifies market share calculation De Brauw Blackstone Westbroek | Competition & Antitrust - Netherlands Jolling de Pree, Jaap de Keijzer Competition & Antitrust IntroductionDecisionCommentIntroductionAccording to a recent decision of the Trade and Industry Appeals Tribunal, the Authority for Consumers and Markets (ACM) was wrong to find that the relevant market should be limited to each individual tender project when applying the national de minimis clause to systematic bid-rigging cartels. The tribunal also corrected the Rotterdam District Court's earlier ruling that for continuous infringements, the five-year limitation period prevents the ACM from taking account of the time-barred part of the turnover when calculating the fine.DecisionIn a decision of November 13 2007 the ACM imposed fines on a number of tree growers for their participation in a cartel during the period from January 1 1998 to February 25 2004. Those companies consulted each other systematically before tendering for contracts for tree nursery products to municipalities.In the appeal against the ACM decision by two tree growers, the Rotterdam District Court ruled that, having regard to the five-year limitation period and the fact that the ACM's decision dated from November 13 2007, the turnover achieved before November 13 2002 related to the time-barred part of this single and continuous infringement. Consequently, the limitation period prevented the ACM from taking account of the turnover achieved before November 13 2002 when calculating the fine, and the court subsequently reduced the respective fines.The tribunal has now clarified that the five-year limitation period relates only to the ACM's power to impose a fine. For continuous infringements such as in this matter, time starts running on the day that the infringement ceases. Consequently, if the ACM's power to impose a fine has not been time barred, the limitation period cannot affect the amount of the fine. The tribunal's approach is in line with the approach taken to the European Commission's power to impose fines under Article 25 of Regulation 1/2003.The tribunal also ruled that the ACM had been wrong in its market share calculation to determine whether the national de minimis clause could apply. Unlike the European Commission's de minimis notice, the national de minimis clause also applies to hardcore cartels. At the time of the cartel, the de minimis clause provided an exemption for restrictive agreements, including hardcore cartels, where the parties' combined turnover does not exceed €40 million and their aggregate market share remains below 5%. The ACM found that, because the cartel related to bidding markets, the market shares of the parties amounted to 100% per project. The tribunal disagreed. Since the infringement consisted of systematic consultation between the parties, the ACM should not have limited itself to a single project, but should have looked at the market shares of the parties on the relevant market for tree nursery products for the public sector.CommentAs a result of the tribunal's ruling, a lengthy bid-rigging cartel qualifying as a continuous infringement could be faced with a higher fine. Alternatively, it may benefit from the de minimis clause. Either way, there is certainly reason to keep an alert eye on market delimitation in the case of bidding markets.For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected], [email protected] or [email protected]). The De Brauw Blackstone Westbroek website can be accessed atwww.debrauw.com.