On 18 December 2014, the Trade and Industry Appeals Tribunal ("Tribunal") upheld a judgment of the District Court of Rotterdam ("District Court") which had annulled a decision by the Dutch Competition Authority ("ACM"). The Tribunal agreed with the District Court that the alleged anticompetitive nature of an agreement could not be conclusively established given that a plausible non-anticompetitive alternative explanation for the conduct existed.
In 2010, the ACM imposed fines on CRG and Carinova of EUR 1.3 million and EUR 4.3 million respectively for anticompetitive conduct on the market for home care. Specifically, the ACM considered that the Parties had agreed upon a non-competition clause within the framework of a partnership called 'Plectrum', which effectively constituted a market sharing agreement. The Parties appealed against the ACM's decision and the District Court annulled the ACM's findings on 14 March 2013. It ruled that the evidence submitted by the ACM was insufficient to conclude that the non-competition clause was actually in place at the time of the alleged infringement. The District Court considered the alternative explanation that the non-competition clause would only apply to the period after the end of the alleged conduct. The fact that one of the parties appeared to consider itself bound by the non-competition clause could not lead to a different conclusion.
On appeal, the Tribunal upheld the District Court's judgment. Although the Tribunal considered that the evidence submitted could give rise to a suspicion that an agreement not to compete existed at the time of the alleged infringement, the Tribunal could not rule out that the Parties' alternative explanation was valid. The ACM accordingly did not provide conclusive evidence of the alleged infringement.
This judgment shows that the District Court and the Tribunal are prepared to critically assess evidence in cartel cases, taking into account plausible alternative explanations for the conduct.