Cartel fines: who pays the piper calls the tune?

The District Court of Rotterdam found that the NMa was right to declare two former parent companies inadmissible in their appeal against a cartel fine imposed on their former subsidiary, despite the agreement to pay the fine at the sale of their subsidiary.14

Pending the NMa’s investigation into potential bid-rigging by Lavaredo, a subsidiary jointly held by Lavason and Voilier, Laverdo was sold by its parent companies. At the sale of Lavaredo, Lavason and Voilier agreed to pay the potential fine imposed on Lavaredo. The NMa eventually imposed a fine on Lavaredo. Contrary to the European Commission’s recent (and controversial) approach15, the NMa attributed the infringement solely to Lavaredo since its (former) parent companies had joint control and there was no reason to assume that Lavaredo did not decide on its own conduct independently.

Consistent with settled case law of Dutch administrative courts, the District Court ruled that the agreement by the former parent companies to pay the fine did not constitute a direct interest in the NMa’s decision to impose a fine on Lavaredo. Neither the agreement to payment of the fine, nor the fact that Lavaredo could withdraw its appeal without the former parent companies being able to prevent that, could alter this.