On 18 December 2014, the District Court of Rotterdam ("District Court") released three judgments in relation to appeals lodged against fines imposed by the Dutch Competition Authority ("ACM") for anticompetitive conduct on the market for foreclosure real estate sales. The District Court in general upheld the ACM's reasoning, but reduced the fines in two judgments with reference to the substantial adverse financial effects that the applicants had already suffered as a result of the ACM decisions.
In 2013, the ACM fined 65 real estate traders for manipulating foreclosure sales between 2000 and 2009 (the ACM had already fined 14 other traders in 2011 for similar conduct). A number of traders appealed against the ACM's decisions citing various arguments. The Court, however, upheld the ACM's substantial reasoning as regards the establishment of the infringements, their single and continuous nature and the gravity of the conduct.
In relation to the amounts of the fines, however, the District Court decided to reduce these by 10% in two cases. The District Court held that the applicants had already been hit by substantial adverse financial effects as a result of the ACM's decisions. The District Court specifically considered the (announced) termination of banking relations to be a mitigating circumstance that justified a fine reduction of 10%. It did not apply this reasoning in the third judgment, though, as the ACM had already reduced that applicant's fine by more than 98% (to EUR 5,000) in the light of his limited financial capacity.
These three judgments accordingly demonstrate that the District Court is prepared to accept that indirect adverse consequences of ACM decisions, such as the (announced) termination of banking relations, may constitute mitigating circumstances when reviewing the amount of a fine.