On 18 December 2013, the District Court of Amsterdam (“District Court”) ruled in interim relief proceedings that there was no reason to deviate from earlier assessments made by the ACM on the compatibility of a joint purchasing agreement by banks with competition law. This judgment is interesting because the Court in civil proceedings followed assessments that the ACM made earlier both formally and informally.
This case was initiated by Brink’s, an undertaking active on the market for secure cash transports. In 2011, a consortium of Dutch banks established the undertaking GSN in order to jointly purchase cash transport and cash processing services. Before formally establishing GSN, the banks had drafted a ‘self- assessment’ of GSN’s compatibility with competition law and had it approved by the ACM informally. Subsequently, Brink’s lodged a complaint with (what is now) the ACM in 2012, claiming that banks’ partnership violated Dutch and EU competition law. Again, though this time formally, the ACM considered that GSN was compatible with competition law. Brink’s subsequently appealed against this decision.
In 2013, GSN put out a tender for the performance of cash transport services. Brink’s submitted a bid but was not selected because it had, according to GSN, scored insufficiently on the criterion of Partnership due to, among others, its aforementioned legal battle against the initiative. In these interim relief proceedings under Dutch civil law, Brink’s demanded that the Court order GSN to stop the tender and retract its rejection of GSN’s bid due to the violation of both competition and public procurement law. The Court dismissed Brink’s demands. It pointed out that the ACM had judged the banks’ partnership on two occasions and found insufficient grounds to deviate from the ACM’s assessments in those instances.
This ruling shows that the Dutch civil courts are prepared to follow the ACM’s earlier assessments, provided that the litigants are unable to put forward sufficient grounds or evidence that justifies any deviation. Moreover, the courts in civil law proceedings may not only rely on formal ACM assessments but also informal ones.