Companies beware: the ACM may not need to specify the scope of its investigation into suspected cartel infringements in as much detail as expected. On 14 January 2020, the Dutch Trade and Industry Appeals Tribunal upheld the ACM’s appeal against judgments of the Rotterdam District Court, which had quashed cartel fines imposed on cold storage operators. The operators had argued that the ACM was time-barred from pursuing a case against them, because the ACM had not suspended the prescription period by beginning investigative actions specifically related to the alleged infringements.

However, the Dutch Trade and Industry Appeals Tribunal judged the broad scope of the ACM’s initial investigation to be sufficient to suspend the prescription period for the specific infringements. The ruling shows that the ACM’s net can still close tightly, even when cast wide, and that companies should keep the exact wording of the scope of the ACM’s investigation in mind – not only during dawn raids, but throughout the entire investigation.

On 12 April 2018, the District Court of Rotterdam annulled fines imposed by the Dutch Authority for Consumers and Markets (ACM) on several cold storage operators, as well as several individuals, for violations of the cartel prohibition (see our May 2018 newsletter).

The District Court sided with the appellants, who argued that the ACM was time-barred from pursuing a case against them as it had not suspended the five-year prescription period by undertaking any investigative actions since the infringement ended. The scope of the ACM’s initial investigation included cold storage in general, and the production and storage of fruit juices specifically; the ACM subsequently imposed the fines for cartel violations relating to the cold storage of fish. Based on this, the District Court had ruled that the previous investigative actions had not suspended the prescription period in the investigation with regard to the latter activities.

However, on 14 January 2020 the Trade and Industry Appeals Tribunal (CBb) upheld the ACM’s appeal against these judgments and referred the cases back to the District Court (decisions 1 and 2). The ACM argued, and the CBb agreed, that its investigations also encompassed the cold storage of fish. The scope of the ACM’s initial investigation, as presented to the companies under investigation, was “investigation into cartel infringements by undertakings which operate cold storage facilities and/or produce and store fruit juices.” This scope was later narrowed down to the cold storage of fish. According to the CBb, the first part of the scope of the initial investigation did not exclude any products, and therefore included the cold storage of fish. Furthermore, the ACM had discussed the cold storage of fish with the undertakings under investigation, both in person and by e-mail, during the prescription period. Therefore, the CBb considered it plausible that the fines in respect of the cold storage of fish followed from the scope of the ACM’s initial investigation, and were not the result of a ‘fishing expedition’. As a result, the ACM’s investigative actions had indeed suspended the prescription period, and the ACM was therefore not time-barred from pursuing the case.

The CBb ruling shows that the ACM can validly suspend the prescription period for a specific infringement within the scope of a broad initial investigation. It also seems to confirm that the ACM can keep the description of the investigation’s objective and subject quite general; leaving companies guessing as to its exact scope. Companies under investigation are advised to carefully review the scope of the ACM’s investigation and confirm the length of the prescription period in respect of the alleged infringements.

This article was published in the Competition Newsletter of February 2020.