On 3 June 2014, the Dutch Trade and Industry Appeals Tribunal ("CBb") annulled a judgment of the District Court of Rotterdam (the "Court") concerning a fine that the predecessor of the Netherlands Authority for Consumers and Markets ("ACM") had imposed on the Dutch Association of General Practitioners ("LHV") for the breach of a seal during a dawn raid at the LHV's premises. The ACM had sealed a room in the LHV's offices. At night, a security guard had opened the door to the room, thereby breaching the seal. The ACM imposed a EUR 51,000 fine on the LHV for the breach of the seal. On appeal the Court confirmed the liability of the LHV for the breach of the seal but reduced the fining amount to EUR 23,000.
Both the LHV and the ACM appealed the Court's judgment before the CBb. Both sides disagreed whether the LHV could be qualified as the actual perpetrator and whether the actions of the security guard could be imputed on the LHV. The ACM put forward that there is strict liability for the undertaking whose premises are sealed. That is, they are liable for a breach of that seal, regardless of who actually breached it. The CBb found that Article 70b of the Dutch Competition Act ("DCA") – which empowers the ACM to impose fines for a breach of seal – is only aimed at penalizing actual perpetrators and does not impose strict liability on the undertaking whose premises are sealed.
However, the actions of the actual perpetrator may be attributed to that undertaking on the basis of the doctrine of vicarious liability. The CBb held that in order to establish vicarious liability on an undertaking, the act should have taken place within the scope of the undertaking. Whether an act took place within the scope of the undertaking depends on the circumstances of the case, including the nature of the act. Furthermore, the following non-exhaustive criteria should be taken into account:
- whether the actual perpetrator was employed or hired by the undertaking;
- whether the act took place within the ordinary course of business of the undertaking; and
- whether the undertaking could have been reasonably expected to foresee the actions of the actual perpetrator and took sufficient precautions to prevent the act from happening.
The CBb found that the LHV was not directly in contact with the seal breaching security guard and took all reasonable precautions to prevent the seal from being breached. Therefore, the LHV could not be held vicariously liable for the actions of the security guard.
From this case it can be deducted that unlike Dutch criminal law and EU competition law, Dutch competition law does not impose strict liability for a breach of seal on an undertaking whose premises are sealed. Instead the undertaking's liability can only be established where the undertaking qualifies as an actual perpetrator or where the conditions for vicarious liability are fulfilled.