On 6 October 2015, the Dutch Trade and Industry Appeals Tribunal ("CBb") fully upheld an earlier ruling by the District Court of Rotterdam [see our June 2012 newsletter]. In essence, the appeal process was initiated by Ziggo B.V. (now a part of Liberty Global plc.) against the ACM's 2008 conditional Phase-I decision, clearing the creation of a joint venture ("JV") between KPN and Reggefiber. With this judgment, the ACM's underlying decision has become final.
In the judgment at hand, the CBb for the first time considered whether courts should apply the same standard of review to (the legality of) the ACM's Phase-I and Phase-II merger decisions. In its cross-appeal, the ACM attempted to argue that since it is bound to apply different substantive tests in its Phase-I and Phase-II decisions, each should warrant a separate standard of review by the courts. The CBb, however, dismissed the ACM's arguments and held that the same (thorough) standard of review should apply, regardless of the phase in which the ACM decision has been concluded.
On appeal, Ziggo argued that certain facts had come to light after the ACM issued its clearance decision that cast doubt on its framework of assessment and ultimately on the remedies imposed on the JV in Phase-I in 2008. Despite the apparent setback for the ACM as regards the standard of review, the CBb dismissed Ziggo's appeal. Since the court is bound to review the ACM's decision based on the facts available to the ACM at the time (i.e. an ex tunc review), subsequent market developments are irrelevant for the lawfulness of the decision. Ultimately, the court held that Ziggo failed to adduce sufficient evidence to prove that the information available to the ACM at the time was unreliable or otherwise insufficient to clear the JV subject to the conditions imposed in Phase-I.
It is interesting to note that since its 2008 decision, the ACM unconditionally cleared the acquisition of sole control by KPN over Reggefiber on 31 October 2014 after a Phase-II investigation. That decision is subject to appeal before the Rotterdam District Court.