The Dutch Authority for Consumers and Markets imposed a fine of EUR 12.5 million on four companies in the cold storage industry. Two of them had been “too open, too soon” during merger negotiations. Fines of up to EUR 144,000 were imposed on five executives for their role in the infringement. These fines serve to remind companies that the exchange of commercially sensitive information – even during merger talks – may be forbidden by competition rules. During preliminary merger discussions, it is therefore advisable for companies to limit not only the extent and the impact of the information exchanged, but also the individuals involved in the merger discussions.
According to the press release by the Authority for Consumers and Markets (ACM), the cold-storage companies were involved in merger talks between 2006 and 2009 and during these talks, exchanged competitively sensitive information with each other, shared customers and made price arrangements. One of the cold storage companies admitted to having been “too open, too soon” when holding merger talks. As a result, it implemented structural changes to its corporate culture and structure to prevent it from happening again.
The ACM used a procedure similar to the European Commission’s cartel settlement regime to lower the fine imposed on this cold storage company by 10% in return for an acknowledgement of its involvement in and its liability for the infringement. The cold storage company’s executives made use of the same procedure to have their personal fines reduced.