In December 2018, the Netherlands Authority for Consumers and Markets ("ACM") published guidelines designed to shorten the timeline and reduce the cost of settling cases. The Guidelines clarify ACM's simplified settlement procedure that applies to competition cases in which ACM has power to impose fines. In exchange for cooperation and an admission of liability, parties can avoid lengthy litigation and ACM will reduce fines by 10 percent.
ACM has authority to impose administrative fines on individuals and corporations for abuse of dominance or anticompetitive agreements up to a maximum of EUR 900,000 or, if higher, 10 percent of a company's turnover. ACM first applied its simplified settlement procedure in a 2015 cartel case involving vinegar producers.
Under the Guidelines, ACM will inform a party about a violation and proposed fine, and, if appropriate, explore simplified settlement with a party. Alternatively, a party can request a simplified settlement. Although ACM does not negotiate fines, a party may submit arguments about why the fine should be reduced. Once ACM determines the fine, the party must admit the violation and accept the fine to qualify.
ACM cautions that simplified settlements are not a right and not all cases are suitable for the procedure. For example, in cases with multiple parties, the ACM offers simplified settlement only if all parties participate. In addition, a party must observe confidentiality and have ceased the offensive conduct.
Simplified settlement is distinct from a leniency application in which a company provides information about cartel conduct in exchange for immunity or a reduced fine. A leniency applicant also can participate in simplified settlement and therefore benefit from reduced fines in both programs.
The Guidelines are notable because:
- They align ACM with European Commission guidelines in cartel settlements that also reduce fines by 10 percent in exchange for cooperation.
- Companies involved in an ACM investigation should be aware of the Guidelines and consider whether the benefits of simplified settlement outweigh costly litigation with ACM.
The Guidelines can be accessed here (in Dutch only).