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Trends and climate

Trends

Have there been any recent changes to the cartel regime? If so, have they had a significant impact on enforcement activity?

In 2016 the maximum fine that the Authority for Consumers and Markets (ACM) can impose for an infringement of the cartel prohibition was raised considerably. Now, the ACM can impose a fine of up to €900,000 (previously €450,000) or 10% of an undertaking’s worldwide group turnover in the past calendar year, whichever is higher. However, under the new rules, the 10% maximum is multiplied by the number of years that the infringement lasted, up to a maximum of four. Hence, for infringements which last four years or more, the maximum fine can be as high as 40% of the undertaking’s worldwide group turnover. In cases of recidivism within five years, the maximum fine is doubled and can therefore be as high as 80% of the undertaking’s worldwide group turnover. Thus, compared with the European Commission, the ACM may now impose substantially higher fines for infringements which infringe not only the Dutch, but also the EU competition rules. The maximum fine that the ACM can impose on natural persons who have played a lead role in a cartel was also doubled from €450,000 to €900,000.

Are there any proposals to reform or amend the existing cartel regime?

No.

Have there been any recent key cases?

Two ACM cartel decisions (Taxis and Cold Stores) were recently annulled because the ACM had failed to:

  • provide sufficient evidence regarding the geographic scope of the relevant market; and
  • demonstrate that an alleged infringement had had an appreciable effect.

Further, the Dutch courts have been rather critical recently as to the value of evidence that can be attached to leniency applications. For example, in Insulating double glazing, the Rotterdam District

Court ruled that leniency applications should be regarded with caution, as applicants may be inclined to incriminate their competitors more than themselves. Therefore, leniency applications that are not supported at least in part by other types of evidence cannot constitute sufficient proof of participation in an infringement. Further, the court found that the ACM had asked leniency applicants leading questions during various interviews. For that reason, the leniency statements could not be regarded as evidence. The court therefore held that the ACM could not prove that an infringement had occurred and annulled the fines for all undertakings (including the leniency applicants). The ACM did not appeal this judgment.

In Flour, the Trade and Industry Appeals Court confirmed that a single leniency statement unsupported by other evidence is insufficient to prove that an undertaking has committed an infringement. However, the court rejected the Rotterdam District Court’s finding that a leniency statement must always be covered by a different form of evidence. Two concurring statements by different leniency applicants therefore constitute sufficient proof of an infringement.

Legal framework

Legislation

Which legislation applies to cartels and what are the relevant substantive provisions?

Article 6 of the Competition Act prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in the Dutch market or any part thereof. Save for the effect on trade (between EU member states) criterion, the cartel prohibition of Article 6 of the Competition Act thus mirrors Article 101 of the Treaty on the Functioning of the European Union (TFEU).

As is the case for Article 101 of the TFEU, the cartel prohibition prohibits every practice that has as its object or effect the prevention, restriction or distortion of competition. Therefore, there is no exhaustive list of prohibited behaviour. The cartel prohibition applies to both horizontal and vertical restraints. All general and sector specific exemptions applicable under Article 101 of the TFEU (eg, the vertical block exemption regulation) also apply under the Dutch cartel prohibition.

Article 7 of the Competition Act provides that the cartel prohibition does not apply to agreements or concerted practices that may have only a minimal impact on competition.

Institutions

Which bodies are the relevant regulatory and prosecutory authorities and what are their specific roles?

The Authority for Consumers and Markets (ACM) is entrusted with the public enforcement of the cartel prohibition. It must also apply Article 101 of the TFEU when applying the cartel prohibition to practices which may affect trade between EU member states.

Are there any sectoral regulators with concurrent powers?

No other sectoral regulators have concurrent powers.

Application

Does the legislation apply to both formal agreements and informal practices?

The cartel prohibition applies to all:

  • agreements (written and unwritten);
  • decisions by associations of undertakings; and
  • concerted practices.

Does the legislation apply to individuals, companies or both?

The legislation applies to ‘undertakings’ within the meaning of Article 101 of the TFEU. It covers any entity engaged in an economic activity, regardless of its legal status and the way in which it is financed. An ‘economic activity’ is any activity that constitutes the offering of goods and services. As such, both companies and individuals may qualify as undertakings.

The ACM can also impose fines on individuals who do not qualify as an undertaking, but commit or order an infringement or fail to take appropriate measures to prevent an infringement.

The cartel prohibition does not apply between companies if they are part of the same economic unit.

Does the legislation subject companies to civil liability, criminal liability or both?

The ACM can impose administrative fines on companies that infringe the cartel prohibition. In addition, any person or company affected by a cartel may bring the matter before a Dutch court in order to claim damages and/or ask for a prohibition of certain actions.

There is no criminal liability.

Does the legislation subject individuals to civil liability, criminal liability or both?

The ACM can impose administrative fines on individuals who infringe the cartel prohibition if they qualify as an undertaking or committed or ordered the infringement. In addition, the individual may be held liable under civil law. There is no criminal liability.

Where cartel conduct is punishable by both civil and criminal penalties, can the enforcement authority pursue both types of penalty? How does the authority decide which penalties to seek?

Not applicable.

Are there any sector-specific offences or exemptions?

No sector-specific offences exist. The ACM has published guidelines on the applicability of the Competition Act and its enforcement priorities in the healthcare sector. In addition, specific exemptions exist for restrictions between shopping centres and their shop owners and retail advertising campaigns.

To what extent, if any, does the legislation apply to extraterritorial conduct?

The cartel prohibition applies to all agreements, decisions by associations of undertakings and concerted practices that prevent, restrict or distort competition on the Dutch market or any part thereof. As such, the cartel prohibition applies to extraterritorial conduct with an effect on the Dutch market or any part thereof.

Investigations

Initiating an investigation

Who can initiate an investigation of potential cartel conduct?

The Authority for Consumers and Markets (ACM) is tasked with investigating potential cartel conduct and can initiate investigations.

If an investigation is initiated by complainants or third parties, what rights (if any) do they have?

If a company qualifies as an interested party, it can submit a formal request to the ACM to adopt a decision directed at one or more undertakings. The interested party is entitled to receive a decision within eight weeks, although it has been established in case law that this period can be extended. However, the ACM may prioritise its actions and thus reject a complaint where it believes that it is of no or limited relevance. Where the ACM decides to act on a complaint, complainants may be given access to the case file.

In addition, individuals and companies that do not qualify as interested parties may inform the ACM about an alleged infringement. Such individuals have no right to receive a decision from the ACM and will have no access to the case file.

What obligations does a company have on learning that an investigation has commenced?

No specific obligations arise from the mere fact that an undertaking has learned that an investigation has commenced. However, every legal and natural person must cooperate fully with the ACM with regard to the rightful execution of its powers.

What obligations does a company have if it believes that an investigation is likely?

The only obligation is the duty to cooperate with the ACM in the exercise of its powers.

What are the potential consequences of failing to act or delaying action?

None, unless the company does not cooperate with the investigation. In particular, if a company does not respond to a request for information from the ACM within the given timeframe or fails to present employees for interrogation at the ACM’s request, it may incur a fine of up to €900,000 or 1% of its total worldwide turnover, whichever is higher.

Formal stages of investigation

What are the formal stages of and approximate timeframe for investigations?

A formal investigation starts with the ACM’s reasonable suspicion that an infringement has taken place. There are no strict deadlines during this stage of proceedings. However, according to established case law, where an administrative procedure exceeds two years, this will constitute an undue delay (the only consequence being a lowering of the fine to a maximum of €5,000 per six months). Where the ACM believes that its suspicion is founded, it will issue a statement of objections. The addressees of the statement of objections will subsequently be given access to the ACM’s file, as well as the opportunity to comment on the document in writing and at an oral hearing. The ACM has 13 weeks from the adoption of the statement of objections to decide whether to impose a fine. The ACM may extend this period by another 13 weeks. Thereafter, the ACM must adopt an infringement decision or a decision declaring that no infringement could be established. During the investigation (after the statement of objections has been issued), an undertaking may propose commitments. If the ACM accepts these commitments, the case will be closed by a commitment decision which does not establish an infringement.

Investigative powers

What investigative powers do the authorities have?

The ACM’s investigative powers include the power to:

  • access premises, land and, with a valid court order, private homes;
  • request information, including in oral interviews;
  • request data and documents and make copies thereof (this also covers the right to make a forensic image of digital documents); and
  • seal premises and objects.

What is the geographic reach of public enforcement actions?

The geographic reach of these enforcement powers is limited to the Netherlands.

When is court approval required to invoke these powers?

A court order is required only to enter a private home without the inhabitant’s permission.

Are searches of business and personal premises authorised? If so, which bodies carry out searches and will they wait for legal advisers to arrive?

The ACM can search business premises, vehicles and, with a court order, private homes. A company or private individual is entitled to legal assistance, but ACM officials are not required to await the arrival of legal advisers. Officials are generally prepared to wait approximately 30 minutes for external legal advisers to arrive. The ACM will not start a formal interview without a legal adviser being present.

What level of cooperation with the authorities is required and what are the consequences for failing to cooperate?

Every legal and natural person must cooperate fully with the ACM in the rightful execution of its powers. This implies, among other things, that a company must provide the ACM with all of the information that it requests and cooperate fully when subject to an inspection by the ACM. Failure to cooperate may result in a fine of up to €900,000 or 1% of an undertaking’s total worldwide turnover, whichever is higher.

Until the ACM’s decision to impose a fine becomes final with respect to all of the practices involved in the cartel, a leniency applicant must fully and continuously cooperate as required in the interest of the investigation or the proceedings. This includes the obligation to:

  • keep employees available for interviews;
  • proactively provide any new evidence at the applicant’s disposal; and
  • maintain full secrecy regarding the application and its contents until the ACM has issued a statement of objections.

Failure to comply with the above obligations may result in an annulment of the grant of leniency.

Is in-house legal advice or attorney work product protected by the law of privilege? Does this extend to the advice of in-house counsel?

The ACM’s right to review business information and documents does not extend to legally privileged documents. Unlike under EU law, this privilege also applies to documents from in-house counsel if such in-house counsel is admitted to the Dutch Bar. If the ACM merely assists the European Commission in the context of an EU investigation, regular EU case law applies. As a result, correspondence with in-house counsel cannot benefit from any legal privilege.

If there is a dispute concerning the application of legal privilege to a certain document during a dawn raid, ACM officials may briefly review the document to assess whether the claim is justified. A company may refuse such a brief review, in which case the document will be put in a sealed envelope and provided to the ACM’s legal privilege functionary for review. If the legal privilege functionary believes that the claim is justified, the document will be returned to the company without review by the case handlers. Similarly, a company may identify digital files which have been copied by ACM officials as legally privileged. Such claims will also be reviewed by the legal privilege functionary prior to the digital evidence being handed over to the case team.

Are any other limitations imposed on investigatory powers in order to safeguard the rights of those under investigation?

An enforcement authority may make use of its powers only to the extent that this is reasonably required for the performance of its duties. In view of the proportionality principle, the ACM cannot systematically search premises and objects or conduct an undirected search of digital files. A court recently ruled that a digital investigation is not undirected where the information is collected through the use of search terms, even where such search terms are broadly formulated and result in the copying of documents that are unrelated to the investigation’s purpose.

What is the process for objecting to an authority’s exercise of its claimed powers?

A company can formally object if it believes that a certain action of ACM officials is unlawful. Under Dutch law, ‘investigative acts’ are regarded as preparatory acts to an ACM decision and thus do not constitute acts that are subject to administrative review and appeal. Consequently, the lawfulness of the exercise of enforcement actions can be established only afterwards in the context of the administrative review and appeal proceedings relating to an eventual decision of the ACM on the merits. Therefore, if a company wants to prevent a certain action from occurring or the ACM from reviewing and using unlawfully acquired information in the context of its investigation, it will need to request interim relief in summary proceedings.

Publicity and confidentiality

What information about investigations will be made publicly available and at which stage(s) of the process?

According to its policy rules on publicity, the ACM will not actively reveal the names of those companies under investigation until it has reached a final decision, although it may choose to announce that it is investigating a particular sector. The Appeals Court of The Hague has even ruled that if the ACM publicises the fact that it has issued a statement of objections to one or more individually named undertakings, this will constitute an infringement of the presumption of innocence. However, as a matter of standard policy, the ACM will answer any specific questions regarding alleged sectors and individual companies under investigation. In addition, the ACM will always issue a press release shortly after adopting a decision imposing a fine and will publish a public version of the full infringement decision in due course.

Is any information automatically confidential and is confidentiality available on request?

Business secrets enjoy absolute protection under Dutch law. The ACM will therefore always ensure that business secrets are neither made public nor provided to third parties. Disputes with the ACM may arise as to whether certain information constitutes a business secret.

International cooperation

Do the authorities in your jurisdiction cooperate with authorities in other jurisdictions?

As a member of the European Competition Network (ECN), the ACM constantly cooperates with the competition authorities of other EU member states and the European Commission. The ACM is also a member of the European Competition Authorities (an informal organisation in which the competition authorities within the EEA cooperate and exchange knowledge) and the International Competition Network.

Do the relevant enforcement authorities request waivers so as to allow for increased cooperation with authorities in other jurisdictions? What are the consequences of declining to grant a waiver?

ECN members can exchange information without the knowledge and permission of the undertakings. Therefore, a waiver from the undertakings is not required. There are no:

  • written procedures for the exchange of information with authorities that are not ECN members; or
  • public precedents in which the ACM requested waivers for undertakings or individuals to allow for increased cooperation with foreign competition authorities outside the European Union.

Decisions

How is a cartel investigation resolved? Are settlements, plea bargains or other negotiated resolutions available?

Before issuing a statement of objections, the ACM can abandon a cartel investigation for lack of evidence or priority. Once the ACM has issued a statement of objections, it must take a decision to either:

  • impose a fine;  
  • accept commitments; or
  • declare that no infringement could be established.

Undertakings may propose commitments in order to avoid a fine. The ACM may accept commitments if it deems that this will be more efficient than the imposition of a fine. If the ACM chooses to accept commitments, it cannot impose a fine for the infringement.

Since 2015, the ACM has been prepared to accept settlements in some cases, including the Natural Vinegar (2015) and Cold Stores (2016) cartel proceedings. To date, it has not established a formal policy regarding settlements, but its approach regarding settlements is slowly becoming visible. In Natural Vinegar and Cold Stores, the ACM rewarded the parties’ willingness to plead guilty by reducing their fine by 10%. In addition, settlement decisions are usually taken in shortened form, which means that potential claimants in civil actions for damages cannot find a detailed description of the infringements in the decision. A party accepting a settlement must acknowledge not only the infringement, as described by the ACM, but also that it has had sufficient access to file and opportunities to voice its positions. It must also explicitly accept the imposed fine.

What is the process for negotiating a settlement, plea bargain or other negotiated resolution? Do such resolutions require court or other approval?

Neither a commitment nor a settlement requires court approval or approval from any body other than the ACM.

The initiative for proposing commitments must come from the undertakings concerned. An undertaking may propose commitments both before and after a statement of objections has been issued. The ACM generally prefers commitments being offered before issuing a statement of objections. The ACM may accept commitments if it considers these to be more effective than the imposition of an administrative fine. In general, the ACM will not accept commitments regarding hardcore infringements of the cartel prohibition. The ACM cannot accept commitments once it has adopted a decision imposing a fine (and vice versa).

The procedure for settlements is informal and hence unregulated. This also implies that the nature of the settlement negotiations may differ from case to case. Both the ACM and the undertakings concerned may take the initiative of entering into settlement negotiations.

If a settlement is not reached, what is the procedure for adjudicating a charge of cartel conduct?

If no settlement is reached, regular proceedings will resume (please see the “Formal stages of investigation” section above for a description) and the draft settlement documents will no longer be part of the case file. This implies that the undertakings concerned are again free to contest the infringement and dispute the amount of any proposed fine. After these regular proceedings have been terminated, the ACM must issue a full, detailed decision.

Which party must prove its case? What is the relevant standard of proof?

The ACM has the burden of proof in cartel cases and must provide evidence that an infringement took place. Under Dutch administrative law, there is no fixed standard of proof; only the judges’ conviction is decisive. This does not imply that the Dutch administrative courts are not highly critical of the ACM’s evidence gathering and case preparation. ACM decisions are frequently overturned because of the provision of insufficient factual or economic evidence in its decisions.

Is there a hearing? If so, what is the process for submitting evidence and testimony?

Once the ACM has issued a statement of objections, it will organise an oral hearing prior to adopting a decision. The ACM will normally impose a timeframe for the undertakings concerned to submit a written reply to the statement of objections. Hearings are chaired by officials of the ACM’s legal department, who will author the decision. The officials of the ACM’s competition department who drafted the statement of objections are usually also present at the hearing. During the hearing, the undertakings concerned are given the opportunity to expand on their written replies and are usually questioned by the hearing committee. There are no procedural rules on submitting evidence and testimony during (or before or after) an oral hearing organised in preparation of a decision.

What are the accused’s procedural rights?

Employees (but not former employees) of undertakings under investigation have the right not to respond to questions that may lead them to incriminate themselves or the undertaking for which they work. Prior to a request for information, the accused must be informed of his or her right not to self-incriminate.

Appeal process

What is the appeal process?

An undertaking wishing to appeal an ACM decision in court must first submit an application for administrative review to the ACM within six weeks (although the initial request can be pro forma, as Dutch administrative law obliges the ACM to give applicants an extension to provide their reasoning if their request was submitted on time). In administrative review proceedings (which also include an oral hearing), the ACM must reconsider its decision in its entirety and take new facts and circumstances into account. The ACM and the undertakings concerned may agree to skip the review phase; however, the Rotterdam District Court may refer a case back to the ACM if it believes that the original decision did not address all of the arguments put forward by the applicant in its request for review.

An undertaking may appeal a review decision to the Administrative Law Section of the Rotterdam District Court. Again, it must do so within six weeks (with the possibility of initially submitting a pro forma appeal). After the reasoning of the appeal has been received, the court will invite the ACM to submit its defence. Subsequently, the court will organise oral proceedings. Both parties may submit further written documents up to 10 days prior to the date of the oral proceedings. Both the ACM and the undertakings concerned may lodge a (further) appeal against the court’s judgment to the Trade and Industry Appeals Court in The Hague. The rules on procedure are identical to those of the initial appeal proceedings.

To what extent can the appeal body review the agency’s findings of fact, legal assessment and penalties?

The court has full discretion to review the ACM’s findings of fact, legal assessment and penalties (including the amount of the fine). In case a court annuls a decision imposing a fine, the court will replace the ACM’s decision with its own judgment. Therefore, a court may annul or lower fines imposed by the ACM, which it frequently does.

Penalties

Penalties for companies

What are the potential penalties for companies involved in a cartel?

The Authority for Consumers and Markets (ACM) may impose administrative fines on undertakings that infringe the cartel prohibition. These fines are calculated in accordance with guidelines. The Competition Act provides that the maximum fine that the ACM can impose will not exceed €900,000 or 10% of the undertaking’s group turnover in the preceding calendar year, whichever is higher.

This maximum is multiplied by the number of years that the cartel was active, with a maximum of four (ie, resulting in a maximum percentage of 40% of the group turnover).

If the undertaking was fined for the same or similar infringement in the five years preceding the statement of objections relating to the infringement under investigation, the maximum fine can be doubled (ie, resulting in a maximum percentage of 80% of the group turnover).

Are there guidelines in place for penalties? If not, how are penalties normally calculated?

Under the ACM Fining Guidelines 2014, the basic amount of the fine reflects the relevant turnover of the undertaking concerned. The relevant turnover will likely relate only to the turnover in relation to the products or services which are the subject of the cartel (this is uncertain, as the guidelines have yet to be applied and – unlike in previous versions – this is no longer expressly stated). The basic amount of the fine is 0% to 50% of the relevant turnover.

The basic amount of the fine is adjusted by taking the gravity and duration of the infringement into consideration. Circumstances of the infringement (eg, aggravating and mitigating circumstances) and the undertaking (eg, lower or no fines may be imposed on companies in financial difficulties) will also be taken into account.

Do the authorities take into account any penalties imposed in other jurisdictions?

The ACM takes penalties imposed in other jurisdictions into consideration. In this respect, it should be noted that a cross-border cartel may often fall within the scope of EU competition law as it will affect trade between EU member states.

The ACM must apply Article 101 of the Treaty on the Functioning of the European Union (TFEU) when applying the cartel prohibition to practices which may affect trade between EU member states. A national competition authority cannot impose a fine if the European Commission enforces Article 101 of the TFEU.

From case law, it follows that the ACM can take EU (non-Dutch) turnover into consideration when calculating the basic amount of a fine. In one case concerning an infringement of both Article 101 of the TFEU and Article 6 of the Competition Act, the ACM appears to have verified with the European Commission and other national competition authorities whether they were planning to fine the companies.

How can a company mitigate its exposure to fines?

There are several ways in which a company can mitigate its exposure to fines.

Undertakings and private individuals may apply for leniency where they can provide evidence of their participation in a cartel. The Authority for Consumers and Markets (ACM) will grant immunity from fines where:

  • the applicant is the first to submit a request for immunity from fines with regard to a cartel;
  • the application concerns a cartel into which the ACM has yet to launch an investigation;
  • the applicant provides the ACM with information in its application that enables the ACM to perform a targeted inspection;
  • the applicant has not coerced another undertaking into participating in the cartel; and
  • the applicant complies with the obligation to fully and continuously cooperate with the ACM.

In addition, the ACM will grant immunity where:

  • the applicant has not coerced another undertaking into participating in the cartel and cooperates with the ACM;
  • the application concerns a cartel into which the ACM has already launched an investigation, but the ACM has yet to send a statement of objections to any of the parties involved; and
  • the application provides the ACM with documents that:
    • stem from the period of the practice in question;
    • were not already in the ACM’s possession; and
    • enable the ACM to prove the cartel’s existence.

Further, like the European Commission, the ACM has a settlement procedure. Although it has not established a formal policy in this regard, its approach is slowly becoming visible.

The ACM can also adopt a commitment decision if it deems that this will be more efficient than the imposition of a fine. If the ACM chooses to accept commitments, it cannot impose a fine for the infringement.

Finally, where it exceeds what is legally expected, the ACM may consider a company’s cooperation as a mitigating factor when calculating a fine.

Penalties for individuals

What are the potential penalties for individuals involved in a cartel?

The ACM may impose fines on individuals if they qualify as an undertaking and/or gave instructions or exercised a de facto leadership role in relation to a cartel. In the latter case, the maximum fine for individuals is €900,000.

Do the authorities take into account any penalties imposed in other jurisdictions?

To date, the ACM has not taken penalties imposed on individuals in other jurisdictions into account.

Is a company permitted to pay a penalty imposed on its employee?

Under Article 3:40 of the Civil Code, an act that – by its content or necessary implications – violates a legal provision, public morality or public order is null and void. It is still uncertain whether an agreement by which a company obliges itself to pay a penalty imposed on one of its employees would infringe the aforementioned provision. The specific circumstances of the case could be relevant in this respect.

Is a company permitted to continue to employ an employee involved in cartel conduct?

Yes.

Private actions

Private damages actions

Can private actions for damages be brought in your jurisdiction? If so, who may assert such actions?

Private actions for damages can be brought before the competent civil district court. On appeal, the case will be handled by a civil court of appeal. The Supreme Court is the final judicial body.

A major event in private enforcement was the adoption of the EU Directive on Antitrust Damages Actions (2014/104/EU). It facilitates both settlements and civil cartel damages proceedings and is expected to lead to more cartel damages disputes and cartel litigation. The directive was implemented into Dutch legislation on February 10 2017.

The Netherlands is in the process of establishing the Netherlands Commercial Court. This will introduce a specialised chamber for international commercial disputes at the Amsterdam District Court and the Amsterdam Court of Appeal. There is jurisdiction where the parties:

  • designate the specialised chamber for international commercial disputes of the Amsterdam District Court (or the Amsterdam Court of Appeal) as the competent forum; and
  • express their consensus for the proceedings to be conducted in accordance with the procedural rules of the Netherlands Commercial Court.

These proceedings and the verdicts of the Netherlands Commercial Court will be in English.

What relief may be awarded to successful claimants (eg, damages, costs, injunctive relief or attorneys’ fees)?

A Dutch court can award many forms of relief to successful claimants, such as:

  • damages;
  • a declaratory relief on liability;
  • an injunctive relief;
  • the rescission of a contract;
  • the specific performance of a contract; and/or
  • the annulment of a legal act.

In addition, the court may compensate parties for legal costs, including attorneys' fees and extrajudicial costs. However, these costs will normally be compensated only for a limited and standardised amount.

How are the amounts of any damages, costs or attorneys’ fees calculated?

Under Dutch law, damages can entail both losses incurred and profits missed. The nature of civil damages claims is to compensate for the actual damages incurred, and these must be fully compensated. The calculation of damages principle requires a comparison between the financial position before and after the event that caused the damages. The damages to be awarded can be affected by the fault of the injured person or the benefits gained by the injured person as a result of the act that caused the damages.

In the Netherlands, a court decision awarding compensation for legal and other costs seldom reflects the actual costs and attorneys' fees incurred. Costs granted by a Dutch court are based on standard amounts for certain activities and on the amount of the claim. Parties may derogate from the scale. However, such derogations may not be to the disadvantage of consumers. The Dutch courts have the discretionary competence to mitigate the amount of the extrajudicial costs. The court may even decide not to award any extrajudicial costs and can set aside an agreement between the parties concerning extrajudicial costs.

Have there been any notable recent cases in which a private action was the subject of adjudication?

The Netherlands is considered by claimants and defendants as one of the most attractive jurisdictions in Europe for launching civil proceedings for antitrust damages, allowing for the bundling of claims and class actions. Among others, the Dutch courts have jurisdiction if a cartelist has its registered office in the Netherlands. It is uncommon for the Dutch courts to declare that they lack jurisdiction in such matters. The Netherlands is also a popular jurisdiction for such damages procedures due to its efficient court system and experienced judges.

For this reason, several high-profile cases in relation to a violation of the EU cartel prohibition have been or are being adjudicated in the Netherlands for damages, such as:

As noted, the cartel prohibition also applies to anti-competitive vertical arrangements. Any (vertical) practice, decision and arrangement that violates the cartel prohibition is automatically void. Therefore, many smaller cases involving vertical relationships are adjudicated before the Dutch courts, such as the compatibility of non-compete obligations with the cartel prohibition.

Class actions

Can class actions be brought in your jurisdiction? If so, what is the procedure for such cases?

Class actions can be brought in the Netherlands. Pursuant to Dutch law, representative organisations – namely, foundations or associations with full legal capacity (ie, 305a foundations) – that meet certain requirements can start legal proceedings against the alleged liable party or parties. A 305a foundation cannot claim damages on behalf of the interested parties. Therefore, a declaratory judgment on a legal issue is normally requested.

This procedure can often be an important preliminary step to a settlement which may then be declared generally binding pursuant to proceedings under the Act on Collective Settlement of Mass Damage Claims. A legislative proposal to amend Dutch legislation regarding class actions is pending in the House of Representatives. Pursuant to this proposal, 305a-foundations will be able to claim damages on behalf of those represented. During such damages proceedings, the parties will again try to come to a settlement under the court’s supervision. If the parties still cannot come to a settlement, the court will determine the collective settlement. It is unclear when this new legislation will come into force.

Immunity and leniency

Immunity and leniency programmes

Is an immunity and leniency programme available for companies? If so, how does it operate?

Undertakings and private individuals may apply for leniency where they can provide evidence of their participation in a cartel. The Authority for Consumers and Markets (ACM) will grant immunity from fines where:

  • the applicant is the first to submit a request for immunity from fines with regard to a cartel;
  • the application concerns a cartel into which the ACM has yet to launch an investigation;
  • the applicant provides the ACM with information in its application that enables the ACM to perform a targeted inspection;
  • the applicant has not coerced another undertaking into participating in the cartel; and
  • the applicant complies with the obligation to fully and continuously cooperate with the ACM.

In addition, the ACM will grant immunity where:

  • the applicant has not coerced another undertaking into participating in the cartel and cooperates with the ACM;
  • the application concerns a cartel into which the ACM has already launched an investigation, but the ACM has yet to send a statement of objections to any of the parties involved; and
  • the application provides the ACM with documents that stem from the period of the practice in question which were not already in its possession, on the basis of which the ACM can prove the cartel’s existence.

Can the enforcement authority decline or withdraw leniency? If so, on what basis?

The ACM will decline leniency if it believes that the request does not meet the criteria for immunity or a fine reduction. In this respect, the ACM is very critical about the added value of evidence provided by a leniency applicant in an already ongoing investigation. If the ACM believes that the added value is insufficient, it will reject the application.

A grant of leniency will be rendered null and void if the applicant fails to fulfil the obligations of the grant – in particular, cooperation, truthfulness and secrecy. In such cases, the ACM may use the information that it received from the leniency applicant as evidence and impose a fine on the leniency applicant as if the leniency application had not been submitted.

Are there benefits for cooperators that do not qualify for immunity? If so, how are these benefits determined?

The ACM will grant a leniency applicant a fine reduction of between 30% and 50% if:

  • immunity from fines is not available (because another undertaking has already applied for immunity and/or the information that it can provide is insufficient to obtain immunity);
  • the ACM has not sent a statement of objections to any of the parties involved in the cartel;
  • the applicant was the first to submit an application for a fine reduction that contained information with significant added value as to the cartel; and
  • the applicant has complied with its obligation to cooperate.

In addition, the ACM will grant a leniency applicant a fine reduction of between 20% and 30% if:

  • immunity from fines is not available;
  • the ACM has not sent a statement of objections to any of the parties involved in the cartel;
  • the applicant was the second party to submit an application for a fine reduction that contained information with significant added value as to the cartel; and
  • the applicant has complied with its obligation to cooperate.

Fine reductions of up to 20% are available for all subsequent applicants, provided that they meet similar criteria as already outlined above.

What benefits (if any) are available for employees and former employees of a company that seeks leniency?

In its leniency application, a company can cover its present employees if they risk personal fines. Coverage of former employees is not automatically possible, but can be discussed with the ACM’s Leniency Office.

Is an immunity or leniency programme specifically available for individuals? If so, how does it operate?

Individuals who believe that they risk personal fines can seek leniency in the same way as companies. They can do so only on their own behalves and not for their (former) employer.

Have there been any notable recent cases in which a leniency application was the subject of adjudication?

In Insulating double glazing, the Rotterdam District Court ruled that leniency applications should be regarded with caution, as applicants may be inclined to incriminate their competitors more than themselves. Therefore, leniency applications that are not supported at least in part by other types of evidence cannot constitute sufficient proof of participation in an infringement. Further, the court found that the ACM had asked leniency applicants leading questions during various interviews. For that reason, the leniency statements could not be regarded as evidence. The court thus held that the ACM could not prove that an infringement had occurred and annulled the fines for all undertakings (including the leniency applicants). The ACM did not appeal this judgment.

In Flour, the Trade and Industry Appeals Court confirmed that a single leniency statement unsupported by other evidence is insufficient to prove that an undertaking has committed an infringement. However, the court rejected the Rotterdam District Court’s finding that a leniency statement must always be covered by a different form of evidence. Two concurring statements by different leniency applicants therefore constitute sufficient proof of an infringement.

Criminal liability

Is immunity from criminal prosecution available? If so, how and under what conditions is immunity granted?

Not applicable.

Application procedure

What is the procedure for a leniency application?

A leniency application may be submitted to the ACM’s Leniency Office by email, fax, mail, telephone or in person. The Leniency Office is a distinct service of the ACM, separated from other services by ‘Chinese walls’. An application must be submitted in writing, but the Leniency Office may allow an oral statement.

The Leniency Office will subsequently decide whether the application meets the criteria for a grant of leniency. If so, the Leniency Office will issue a conditional grant of leniency (indicating the category of fine reduction for which the applicant qualifies). If the Leniency Office rejects the application, the applicant will not qualify for leniency, but the application will not be shared with other services within the ACM and hence does not become part of the ACM’s file.

What is the typical timeframe for consideration of a leniency application?

There is no typical timeframe for leniency applications; this can vary considerably from case to case and is dependent, in particular, on the delay for the completion of a marker that the Leniency Office is prepared to grant. After the completion of a marker, the Leniency Office will normally decide on an application within a few weeks.

What information and evidence is required?

In its application, the applicant must:

  • confess that it participated in a cartel;
  • provide all of the information in its possession regarding the cartel and its functioning and the market on which the cartel operates; and
  • provide the names and contact details of the other cartel participants and their representatives.

What information and evidence is disclosed to subjects of the investigation other than the leniency applicant?

Until the ACM issues a statement of objections, no information is revealed to other parties. Upon the issuance of the statement, the case file will be made available to its addressees. That case file will contain a copy of the leniency request and supporting evidence, from which business secrets will have been deleted.

What level of cooperation is required from applicants?

Until the ACM’s decision to impose a fine becomes final with respect to all of the practices involved in the cartel, a leniency applicant must fully and continuously cooperate as required in the interest of the investigation or the proceedings. This includes the obligation to:

  • keep employees available for interviews;
  • proactively provide any new evidence at the applicant’s disposal; and
  • maintain full secrecy regarding the application and its contents until the ACM has issued a statement of objections.

Failure to comply with the above obligations may result in an annulment of the grant of leniency.

What confidentiality protection is offered to applicants?

Full confidentiality is guaranteed – and required – from the applicant until the ACM issues a statement of objections, after which a non-confidential version will be made available to the other case parties. Once the ACM has issued its final decision, the fact that a leniency application has been submitted (and by whom) will be made public, along with a description of the contents in the application, as part of the decision’s reasoning. However, a copy of the application will not be published and the ACM will categorically deny requests for access to copies of leniency applications by third parties that are not addressees of the decision.

Can the company apply for a marker? If so, under which conditions?

A leniency applicant that submits an incomplete application may be eligible for a marker if the application offers, in the Leniency Office’s view, a concrete basis for a reasonable suspicion of the applicant’s involvement in a cartel. If the Leniency Office establishes a marker for a leniency applicant, it will specify a time limit within which the applicant must complete its application. If the leniency application is completed within this time limit, the application will be deemed to have been completed from the moment that the marker became applicable. If the applicant fails to do so, the application will be rejected.