On 11 February 2014 the Dutch minister of economic affairs announced that the government would submit legislative proposals in the fall of 2014 to enable the Netherlands Authority for Consumers & Markets ("ACM") to impose higher fines for cartel infringements
Under the current rules, the ACM determines the amount of a fine on the basis of its fining policy rules. Within this framework, the fine that is ultimately imposed by the ACM can never be higher than the legally permitted maximum amount of the fine. The ACM is further obliged to lower the amount of the fine if the continued existence of the undertaking is in danger as a result of the imposed fine.
Stemming from a government-commissioned study carried out by the Dutch consulting firm Strategies in Regulated Markets, the Dutch Minister of Economic Affairs announced three proposals in order to increase the deterrent effect of cartel fines.
The first proposal by the Minister involves amending the legally permitted maximum amount of the fine. Currently, the maximum amount of the fine is EUR 450.000 or, if this is higher, 10 percent of the yearly turnover of an undertaking that is involved in the cartel infringement. The Minister proposes to change the base amount for calculating the fine from ten percent of the turnover for one year to 10 percent of the combined turnover during the years that the cartel was in place. The Minister suggests however that the number of years that are taken into account must be limited to a maximum of 4 years, as this corresponds to the average duration of a cartel.
The second proposal entails doubling the legally permitted maximum amount of the fine in case of recidivism of an undertaking. Thirdly, the Minister announced that the possibility of introducing a payment arrangement in order to pay an ACM-imposed fine will be examined. According to the Minister, such a payment arrangement could reduce the need to decrease a fine on the basis of an undertaking’s lack of financial capacity and would increase the deterrent effect of the other two proposals.