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Cartels

Article 6(1) of the Competition Act provides the prohibition on anticompetitive agreements. Its wording is similar to that of Article 101 TFEU. The provision prohibits agreements between undertakings, decisions of trade associations and concerted practices between undertakings to the extent that they have an anticompetitive object or effect on the Dutch market. Differing from Article 101 TFEU, the Dutch prohibition does not require an effect on interstate trade.

Article 6(3) of the Competition Act provides an exception to Article 6(1) of the Competition Act and is similar to the exception laid down in Article 101(3) TFEU. Article 6(3) of the Competition Act holds that the prohibition does not apply to agreements, decisions and concerted practices that (1) contribute to improving the production or distribution of goods, or to promoting technical or economic progress, while (2) allowing customers a fair share of the resulting benefit, and that do not (3) impose restrictions that are not indispensable to attain these objectives, and (4) that do not eliminate competition in respect of a substantial part of the relevant products and services.

Article 7 of the Competition Act seeks to exempt agreements between small and medium-sized enterprises that would otherwise be prohibited under Article 6(1) of the Competition Act. Article 7(1) of the Competition Act provides that undertakings are allowed to make (otherwise anticompetitive) agreements if not more than eight undertakings are involved, and the joint year turnover amounts to a maximum of €5.5 million for goods and €1.1 million for services. Article 7(2) of the Competition Act contains the second exemption. It provides that the cartel prohibition does not apply if the aggregate market share of the parties is below 10 per cent. However, this exemption is not applicable if the concerned agreement falls within the scope of Article 101(1) TFEU.

The competition rules before the Competition Act did provide for criminal sanctions, even though in actual practice there was little, if any, enforcement. By contrast, the current Competition Act does not contain a criminal sanction regime. Notwithstanding the above, an administrative fine may still be considered as a 'criminal charge' within the meaning of the European Convention of Human Rights.

Since 1 July 2016, the fine for cartel infringements may be up to 10 per cent of the turnover of all the years of the infringement, up to a maximum of four years (i.e., 40 per cent of the annual turnover). The fine for repeat offenders will be doubled, which can lead to a maximum fine of 80 per cent of the undertaking's turnover in the preceding business year.

The Netherlands has a leniency regime for both companies and individuals. The leniency guidelines grant complete immunity from fines to the first company that presents information to the ACM about a cartel prior to the start of an investigation. Leniency applications must be submitted to the ACM's leniency office. The leniency applicant must provide the ACM with information that has significant added value, and has to fully cooperate with the ACM's investigation. Apart from complete immunity for the first successful leniency applicant, three other categories of fine reductions exist, largely depending on timing and the added value of the leniency applicant's information for the investigation.

The ACM may choose to accept commitments in lieu of further investigating a case. Such a commitment decision needs to ensure that an infringement is either prevented or seized. The ACM may thus take such a decision even where it has found no definitive evidence of an infringement. If the ACM decides to take this route, it must make clear, inter alia, why a commitment decision is more effective from an enforcement perspective. In the case of breach of the commitments, the ACM may impose a fine.

In December 2017, the ACM successfully concluded its first investigation as part of its campaign to improve competition law compliance in the ports and transport sector. After a joint investigation with the German Federal Cartel Office into cartel agreements by harbour towage service providers, the Federal Cartel Office imposed fines on three undertakings as part of a settlement procedure amounting to approximately €13 million. According to the ACM, the Federal Cartel Office was the most appropriate authority to conclude the investigation. The ACM thus decided to close its own investigation after the cartelists reached a settlement with the German authority. In addition to the harbour towage service decision, the departing president of the board of the ACM confirmed various investigations in the harbour sector are currently ongoing, including an announced investigation in the bunker sector.

In June 2017, the AMC issued fines in one of the three BWMT investigations, resulting in €13 million in fines, concerning price agreements relating to a surcharge for lead in the sale of (imported) traction batteries, which amounted to 10 to 30 per cent of the total sale price of those batteries. In addition to the importers, the ACM also fined the BMWT trade association because it had 'participated in the collusion with an active supporting role', citing the Cement and Treuhand criteria. In this regard, the ACM notes that:

  1. the BMWT offered the meeting space;
  2. the president of the trade association was present during the relevant meetings;
  3. the association had allowed the topic of the lead surcharge to return on the agenda various times;
  4. the association had circulated the lead-surcharge lists to the participants; and
  5. the association had provided secretarial support.

The ACM also reproached the BMWT for not intervening the moment that the agreements were made, and that it had actively followed up on these agreements in the period thereafter.

In July 2017, the ACM closed the other two BMWT investigations relating to an information exchange concerning service costs of construction machinery and material handling trucks without finding an infringement. These therefore closed without any fines, despite almost five years of investigation. The Competition Department concluded in its report that there was an 'inherent interplay' between the costs of after-sales services (on the secondary market) and the purchase of the product (on the primary market). The ACM's Legal Department, however, concluded that the investigation report did not demonstrate such an inherent connection between the primary and secondary markets. In particular, the investigation report did not show that the costs of services constituted an important factor in the selection choice of customers, and thereby in the competitive process between the importers of the machinery and trucks (on the primary market). The Legal Department concluded that the (factual) context provided by the investigation team, which formed the basis for the assessment of the behaviour as being anticompetitive, had not been proven. The implicit grounds for not finding an infringement on the secondary after-sales market appears to be the brand-specific nature of the after-sales services, which means that there was no competitive process between the parties.

A few cartel decisions of the ACM were appealed at the District Court of Rotterdam and the Dutch Trade and Industry Appeals Tribunal (CBb) respectively in 2018.

In April 2018, the District Court of Rotterdam annulled four fines the ACM imposed on two undertakings, H&S (€694,000) and Samskip (€901,000), and a de facto executive (two fines of €50,000) for violating the cartel prohibition. The undertakings are active in the cold store sector and had exchanged commercially sensitive information with each other, such as price and capacity, according to the ACM. The District Court of Rotterdam upheld the appeals of the two undertakings and the de facto executive. The court considered that the ACM did not interrupt the expiry period of the power to impose a fine in time in relation to the fine imposed on Samskip and one of the fines imposed on the de facto executive. As a result, the limitation period had already expired at the time of the imposition of the fines. Regarding the fine imposed on H&S and the second fine imposed on the de facto executive, the court referred to two key points. First, the ACM had provided insufficient evidence that the investigated contacts were part of an overall plan constituting a single and continuous infringement. Second, the ACM's investigation did not sufficiently support its conclusion that the relevant geographic market is national in scope.

In October 2018, the CBb reduced fines imposed in relation to an industrial-laundry cartel. Four cooperating laundries had entered into franchise agreements (as franchisees) with their joint subsidiary (as franchisor), in which they allegedly divided the market into territories and agreed not to acquire customers outside their own territory. On appeal, the CBb held that the existence of the franchise agreements is without prejudice to the fact that the arrangement is predominantly horizontal in nature and came down to a by object restriction of competition on the market. Nevertheless, the CBb considered that in determining the gravity of the violation, the ACM did not give sufficient weight to, inter alia, the fact that the cooperation between the laundries bears a certain resemblance to a franchise organisation. The CBb therefore reduced the fines imposed by the ACM.

In October 2018, the CBb upheld the fines imposed by the ACM on three collectors of sea-going ships' waste in the Rotterdam port area for distributing orders among them. This was evident from intercepted telephone conversations, the reports of which had been made available to ACM by the former Ministry of Housing, Spatial Planning and the Environment. On appeal, the District Court of Rotterdam had held that the infringement lasted four months shorter than assumed by the ACM and therefore reduced one of the fines imposed. However, this decision was overturned by the CBb, considering that the ACM had sufficiently substantiated the duration of the infringement. The CBb recalled that as follows from settled case law, it is for the competition authority to adduce precise and consistent evidence to prove the existence of the infringement. However, not every means of proof adduced necessarily has to fulfil these criteria for each part of the infringement. It is sufficient that the collection of evidence adduced by it, taken as a whole, satisfies that requirement. The CBb concluded that the ACM had satisfied this requirement.

In March 2018, the ACM declared binding commitments offered in the case of KLM/Schiphol in 2017. According to the ACM's (preliminary) research, KLM Royal Dutch Airlines (KLM) and Amsterdam Airport Schiphol (Schiphol) had frequent contact with each other regarding the utilisation of airport capacity, and regarding Schiphol's plans for airport facilities, its investments and marketing strategy, and airport charges. The ACM feared that due to these interactions, Schiphol would not set its strategy independently, but would change it to accommodate KLM's wishes. The parties involved committed themselves not to have any contact about growth opportunities of other airlines, and to Schiphol independently developing its own plans for investments, charges and its marketing strategy.