The NMa reduced a fine on a Dutch swimming pool chemicals distributor for market-sharing by more than EUR 1 million after the distributor specified its relevant turnover6 in administrative appeal.7 The relevant turnover had initially been based on an estimate by the NMa due to lack of insight into the distributor’s relevant turnover. The European Commission has a similar option in its fining guidelines.8
According to the policy rules on the imposition of fines9, the NMa sets the level of fine by determining the starting point of the fine on the basis of 10% of the relevant turnover. If the NMa is unable to determine the relevant turnover on the basis of information provided by the offender, the NMa may estimate this turnover. The basic fine is subsequently determined by multiplying the starting point for the fine by a factor (S) to represent the seriousness of the infringement and adjusted in accordance with aggravating and mitigating circumstances.
The NMa’s estimate of the distributor’s relevant turnover was based on statements by the distributor’s general manager and other participating companies on the distributor’s market position, as well as the relevant turnover achieved by the other participating companies. In administrative appeal, the distributor submitted a report by Ernst & Young Accountants with a significantly lower relevant turnover than estimated by the NMa. The NMa subsequently reduced the fine in accordance with this new information.