The Authority for Consumers and Markets (ACM) has imposed a fine of €500,000 on car dealer Motorhuis and its holding companies Markeur Holding and Markeur Houdster for failure to notify Motorhuis's acquisition of the Bulters Group activities, thus following the same line of parental liability that it applies in cartel cases. The ACM, contrary to the European Commission (eg, Electrabel/CNR, M4994), considers the early implementation of a concentration as a momentary infringement and therefore does not take the infringement's duration into account when calculating the fine.

The parties argued that the notification obligation applied only to the company directly concerned with the transaction (ie, Motorhuis) and does not refer to the entire "economic unit" as in cartel cases. According to the ACM, the fine should be imposed on Motorhuis and its holding companies. Even though Motorhuis acquired direct control over the Bulters Group activities through the transaction, it is a 100% subsidiary of Markeur Holding and Markeur Houdster. Therefore, both holding companies also acquired indirect control over the Bulters Group activities. As a result, the notification obligation applied to all three parties.

The fact that the infringement lasted only a short time did not qualify as a mitigating circumstance in the ACM's fine calculation. Contrary to the European Commission's view (recently confirmed by the General Court), the ACM considers the infringement of the notification obligation to be not a continuous but rather a momentary infringement, which in earlier cases has been compared to driving through a red light: the infringement stops once you have passed the traffic light. However, a 20% fine reduction was granted to the parties for the conclusion of a standstill agreement and their cooperative attitude.

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).

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