The Rotterdam District Court has upheld the way in which the Authority for Consumers and Markets (ACM) calculated the fines imposed on a number of companies for participating in a silverskin onion cartel. The cartel participants generated 60% of their combined turnover within the European Union. For the first time, the ACM based the fines imposed on the cartel participants' EU-wide turnover instead of national turnover. The court held that the ACM was right to do so, since EU Regulation 1/2003 authorises the ACM to apply EU competition rules and impose fines. The ACM is likely to use this extraterritorial sanctioning power more often from now on. Companies should thus be aware that the amounts of fines for participating in a Dutch cartel affecting interstate trade may increase significantly.

On appeal, the companies argued that the ACM should have stuck to its approach in an earlier cartel affecting interstate trade in which only national turnover was used to calculate the amount of the fine. In the 2003 shrimp cartel case, the ACM had explicitly limited the fines for the companies involved to the effect that their behaviour had on the Dutch part of the market.

The court reiterated that since the entry into force of Regulation 1/2003, the ACM is authorised to apply EU competition rules to individual cases and impose fines for infringements. Further, the ACM could deviate from its earlier approach because different circumstances applied. The shrimp cartel case dated back to the early days of Regulation 1/2003, when there was no experience of the allocation of cases between the national competition authorities within the European Competition Network. In addition, the German Competition Authority was also conducting an investigation into the shrimp cartel and the ACM limited the fine to the Dutch part of the market to prevent the German Competition Authority from being faced with potential double jeopardy. Therefore, the court concluded that the ACM could take the EU-wide turnover into account in its calculation of the fines.

For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (jolling.depree@debrauw.com, erik.pijnackerhordijk@debrauw.com or jaap.dekeijzer@debrauw.com). The De Brauw Blackstone Westbroek website can be accessed atwww.debrauw.com.