On 27 September 2012, the Rotterdam District Court substantially reduced fines imposed by the Dutch Competition Authority ("NMa") on the Dutch media company Wegener and three of its executives for failure to comply with merger remedies. In addition, the District Court ruled that the NMa had wrongfully imposed personal fines on two supervisory board members for exercising de facto leadership over the infringement (LJN: BX8528). The District Court considered that some of the remedies imposed by the NMa were insufficiently clear, the fine imposed on Wegener was disproportionate, and supervisory board members can only be considered to exercise de facto leadership (which is required for the imposition of fines on private individuals) in exceptional circumstances.
With reference to the NMa's Remedy Guidelines 2007, the District Court emphasised that a remedy needs to be detailed, as well as written in clear and understandable terms and not open to several interpretations. The District Court considered that for the interpretation of the remedy, account should be taken of the text of the remedy and not of any unclear intentions of the NMa at the time of the imposition of the remedy. Consequently, the District Court concluded that not all of Wegener's conduct constituted a violation of the remedies, and the fines imposed on Wegener could therefore not be upheld. In addition, the District Court ruled that the 2009 fining policy rules of the Minister of Economic Affairs on the imposition of administrative fines did not provide enough nuance for this case to arrive at a proportionate fine. The District Court illustrated this by noting that a cartel infringement – the most serious form of anti-competitive behaviour – would lead to a much lower fine for Wegener in the region of Zeeuws-Vlaanderen, because the fine would have been based on the turnover in this region. The District Court thereupon reduced the fine imposed on Wegener from more than €19 million to €2 million and the fines imposed on Wegener's executives to €50,000 and €100,000.
The District Court furthermore ruled that the role of a member of a supervisory board can only in exceptional circumstances be reconciled with the notion of de facto leadership, as this role will usually be limited to supervision. A member of a supervisory board would need to have a special, for a member of a supervisory board atypical role within the company in order to qualify for de facto leadership. The fact that in this case the two members of the supervisory board had specific powers to approve certain decisions of the executive board with regard to the mutual independence of the newspapers was not sufficient to qualify them for de facto leadership, neither was the exercise of their role in practice. The District Court consequently concluded that the NMa was not authorized to impose personal fines on the members of the supervisory board, and revoked the decisions addressed to them.