On 20 March 2014 the District Court of Rotterdam handed down its judgment on five appeals from the onion cartel. The District Court ruled that the Netherlands Authority for Consumers & Markets ("ACM") is allowed to take into account turnover generated outside of the Netherlands in determining the amount of the fine.
The District Court confirmed the ACM decision in which several undertakings involved in the cultivation, processing and sale of onions were found guilty of one single continuous infringement consisting of illegal agreements on market quotas, joint purchasing of operating assets from competitors and the exchange of market information between competitors.
Noteworthy is the method for calculating the fine. In its decision, the ACM took into account the EU-wide turnover instead of only the national turnover of the undertakings as the base when setting the fine. The ACM based its approach on the fact that pursuant to Article 5 of Regulation 1/2003, national competition authorities obtained the jurisdiction to apply the European competition law provisions of Article 101 and 102 TFEU in individual cases. This sole consideration was also sufficient for the District Court to rule that the ACM was authorized to take into account the EU-wide turnover of the undertakings from the date of adoption of Regulation 1/2003 on May 1st 2003.
Appellants argued that there was no reason for the ACM to deviate from the method for calculating the fine that was applied by the ACM in the shrimp cartel case (Case 2269/shrimps), in which only the national turnover was taken into account as fine base. The District Court found, however, that the decisions in the shrimp case were taken against a fundamentally different historical context in which the Dutch Competition Authority was not yet experienced with the cooperation and allocation of cases between authorities within the European Competition Network. Although the District Court did not explicitly mention that the ACM initially imposed fines in the shrimp cartel case before Regulation 1/2003 was adopted, this fact seems to play a crucial role in the reasoning of the District Court.
This judgment seems to be in line with the proposal by the Dutch minister to enable the ACM to impose higher fines with respect to cartel infringements (see: "Dutch government seeks higher fines for cartel infringements").