An extract from The Dominance and Monopolies Review - 7th edition

Abuse

i Overview

As with the concepts of market definition and market power, the ACM and the courts tend to closely follow the case law of the Commission and EU courts on the concept of abuse. There are no substantive areas in which Dutch practice may be said to clearly deviate from European practice. Still, over the years, some noteworthy decisions have been handed down with respect to the various types of abuse within the abuse of dominance spectrum itemised below.

ii Exclusionary abusesExclusionary pricing

The ACM concluded its first predatory pricing case in a tender procedure in 2017 with the imposition of a €41 million fine on Dutch Railways (NS) for abuse of dominance in a regional tender process. According to the ACM, NS wanted to prevent its competitors from winning the tender at all costs, as the tender process served as a pilot for a further decentralisation of the main railway network. NS was found to have abused its dominant position on the main railway network in two ways. First by submitting a loss-making bid for a public transport contract in the Dutch province of Limburg, and second, by a combination of exclusionary conduct (see below for details). In respect of the exclusionary pricing, instead of an ex post comparison of actual costs and actual revenue, the ACM had to use an ex ante approach to determine predation because the case related to a bid for a concession that was ultimately not awarded to NS. The ACM compared NS's internal rate of return (IRR) when performing the concession with its weighted average costs of capital (WACC), and concluded that the IRR would be lower than the WACC. As a result, the concession's expected revenue would be insufficient to recover the anticipated costs. According to the ACM, this made it impossible for as-efficient competitors to match or outbid the NS bid without incurring loss.

The Sandd case provides another good example of the ACM's policy views with respect to exclusionary (predatory) pricing. In May 2012, the ACM confirmed its 2009 decision that formerly public postal service monopolist PostNL (formerly TNT Post) did not abuse its position on the Dutch postal service market, thereby rejecting a complaint by PostNL's competitor Sandd. Sandd had claimed, inter alia, that the 'free' use of PostNL's network by its 'price fighting' subsidiary Netwerk VSP distorted competition on the Dutch postal (addressed mail) market. Sandd argued that the predation assessment should consist in comparing Netwerk VSP's prices and costs, whereby the remuneration paid by Netwerk VSP for the use of PostNL's network should be considered costs of Netwerk VSP. The ACM rejected that argument, as it held that PostNL constituted an 'economic unit' with its subsidiary. Given that the average prices charged for the addressed mail service of Netwerk VSP was above the long-run average incremental costs (LRAIC) of PostNL (including Netwerk VSP) the ACM concluded – in line with the Commission's guidance on abusive exclusionary conduct – that there was no evidence of abusive pricing, and rejected Sandd's complaint. The District Court of Rotterdam upheld the ACM's decision in administrative appeal. The Court dismissed Sandd's argument that the LRAIC was not an appropriate test to determine abuse in the postal market, as it is based on a comparison with an 'equally efficient competitor'. Sandd argued that new entrants to the postal market obviously cannot operate as efficiently as the former monopolist. However, the Court considered that the ACM was right to make such a comparison, as otherwise a less efficient competitor would be able to force a dominant company to raise its prices to the detriment of the end user merely because it is less efficient.

Exclusive dealingLoyalty rebates

In the CR-Delta case, the ACM held, inter alia, that certain rebates granted by the (dominant) Dutch 'cattle improvement cooperative' on its insemination services were of a loyalty-inducing nature and, therefore, anticompetitive. This view was later confirmed by the District Court of Rotterdam. However, the Trade and Industry Appeals Tribunal (CBb), the highest administrative court in cases on appeal of decisions from the ACM, ruled (in 2010) that despite the obvious loyalty-inducing aim of the rebates, the ACM should have examined whether the rebates were capable of having anticompetitive effects before concluding that the rebates were illegal (referring to the Tomra jurisprudence of the ECJ). According to the CBb, the rebates were not capable of having such effects, as the rebates only accounted for a very small (merely 'symbolic') part of the total costs. Moreover, according to the CBb, competitors were able to (profitably) match the prices charged by CR-Delta, which according to the CBb clearly indicates the absence of any exclusionary effects of the rebates. For these reasons, the CBb overturned the decision of the ACM.

Other exclusionary acts

In early 2011, the ACM ruled that GasTerra, a Dutch company active in the trade and supply of natural gas, had used supply conditions in its contracts with energy distributors in the Netherlands that discouraged these distributors from combining their offer with gas obtained from other wholesale suppliers, thereby impeding the creation of competition in the wholesale gas market. However, on administrative appeal, the ACM became convinced that the lack of differentiation on the distributors' side was attributable to a number of other factors as well. For example, after the market had been liberalised, it simply took quite a while before alternatives to GasTerra's products and services became available. In addition, there may have been practical and legal obstacles to the introduction of contracts that would offer energy companies more freedom. The ACM therefore arrived at the conclusion that it could not be established that GasTerra had abused its dominant position.

Leveraging

Over the past 15 years, the ACM has performed only two in-depth investigations focused on alleged tying. In one of those cases, KPN, the former state monopolist in telecommunications, filed a complaint against four major cable television companies for alleged abuse of their (regional) dominant position by, inter alia, tying their analogue packages to their digital packages. The ACM dismissed the complaint because it found that the analogue and digital packages were part of one and the same market, and therefore there could be no case of tying.

Refusal to deal

On the subject of refusal to deal, NVM v. HPC confirms that the Dutch courts closely follow the Bronner criteria in their assessment of such cases. In June 2012, the Amsterdam Court of Appeal handed down a decision in a case between the Dutch Association of Real Estate Agents (NVM) and the (bankruptcy trustee of) software company HPC. HPC submitted that the NVM had illegally refused access to technical specifications necessary for third-party software packages to interface with a widely used software system supplied by the NVM. The Court first considered that the case law of the EU courts should be 'guiding' in applying Article 24 of the DCA. It then proceeded to assess the cumulative criteria of Bronner to determine whether the alleged (constructive) refusal to deal should be held abusive. It ruled that HPC had not been able to convincingly demonstrate that all competition had been eliminated by the NVM's alleged refusal; and that having access to the specifications was the only way of building a market presence in view of, inter alia, the fact that HPC had been active on the market with a market share of about 20 per cent. It therefore rejected the abuse of dominance claim. The Dutch Supreme Court upheld the Court of Appeal's ruling and, referring to EU case law, rejected the plaintiff's argument that not all competition will need to be eliminated for it to constitute abuse. According to the Supreme Court, the Court of Appeal rightly deduced that competition by HPC, and thus competition on the market, was not completely eliminated by the NVM's behaviour, given HPC's 20 per cent market share.

On the subject of refusal to license, there is an interesting body of case law in which different Dutch courts have applied the relevant EU concepts differently. It concerns a long-standing dispute between the largest Dutch daily, De Telegraaf, and the National Broadcasting Organisation (NOS) together with the public broadcasting organisations that the NOS represents. De Telegraaf claimed, in a complaint to the ACM in 2001, that the refusal of the broadcasters to provide De Telegraaf with television programming schedules for use in a weekly television guide amounted to an abuse of a dominant position. The ACM sided with De Telegraaf, and the decision was subsequently confirmed by the District Court of Rotterdam.

In the parallel civil (summary) proceedings initiated by NOS and public broadcasters against De Telegraaf and relating to the same subject matter, the courts, all the way up to the Supreme Court, arrived at the same conclusion: they found that NOS abused its dominant position by refusing to supply the programming schedules. With respect to the argument raised by the broadcasters before the Supreme Court that the Court of Appeals had not properly considered whether the weekly guide of De Telegraaf would satisfy the 'new product' criterion of the Magill case, the Supreme Court responded that the Court of Appeals had done enough by establishing that there would be a certain demand for the De Telegraaf weekly guide.

However, after this Supreme Court decision in the civil suit, the CBb overturned the ACM's decision and the District Court's ruling in the administrative proceedings. With reference to, in particular, the criteria set out in the IMS Health decision that had just been handed down by the ECJ, it held that De Telegraaf 's weekly television guide should not be considered a 'new product' (there were already weekly television guides on the market, published by various broadcasting organisations), and that the refusal by NOS therefore did not prevent the introduction of a 'new product'. The preliminary relief judge of the District Court of Amsterdam arrived at a similar conclusion in a similar case in 2005, between commercial broadcaster SBS and publisher Quote Media.

Perhaps the different rulings of the CBb and the Supreme Court in the case of De Telegraaf v. NOS could be explained by the fact that, unlike in the Magill case, the 'new product' criterion was clearly presented as a cumulative criterion in IMS Health, which was issued only after the Supreme Court's decision. However, it still remains doubtful whether, in view of Magill alone, the Supreme Court was right to endorse the lack of a more specific assessment of the new product criterion by the Court of Appeals and consider it satisfied by referring to the existence of a demand for the product.

In the 2017 case against the Dutch Railways, the ACM not only decided that NS was guilty of predatory pricing, but also of exclusionary measures aimed at putting competitors at a disadvantage. The conduct consisted of providing delayed and incomplete responses to competitors' access requests to certain services and facilities owned by NS, using confidential information obtained from a former director of one of its competitors and passing on that confidential information about its competitors to its subsidiary, which participated in the tender process.

iii Discrimination

In March 2018, the District Court of Amsterdam dismissed the claim by real estate association VBO that online real estate platform Funda provided preferential treatment to real estate association NVM, co-founder and indirect shareholder of Funda, in terms of, inter alia, costs and ranking on its website. The District Court first underlined that applying dissimilar conditions to equivalent transactions with other trading parties only qualifies as abuse if it thereby places them at a competitive disadvantage. As a result, for conduct to qualify as abuse there must be a finding not only that the dominant company's conduct is discriminatory, but also that the dominant company's conduct tends, having regard to the whole of the circumstances of a case, to lead to a distortion of competition between business partners. In this context it is particularly necessary to examine whether the discrimination is likely to have a negative effect on the ability of trading partners that are disfavoured to exert competitive pressure on trading partners that are favoured. The District Court found that VBO had failed to demonstrate that the discrimination tended to distort its competitive position. As a result, the Court concluded that it could not be established that Funda had abused its dominant position.

In May 2012, the CBb confirmed an earlier dismissal by the ACM of a complaint by Fresh FM, a Dutch radio broadcaster, against Buma, the Dutch collecting society for composers and music publishers. Fresh FM claimed that Buma had abused its dominant position by discriminating between regional commercial radio broadcasters and other broadcasters in terms of tariffs charged, as well as by charging excessively high tariffs to these commercial regional broadcasters. The ACM provisionally investigated the potential exclusionary effects of the alleged discriminatory pricing. It concluded that Buma clearly had no incentive to exclude Fresh FM or any commercial stations from the market, as these parties operated as Buma's customers (just as much as other broadcasters). The ACM also investigated whether the tariffs were potentially excessive. Based on an international price comparison it decided that they were not. The ACM thus rejected Fresh FM's complaint, and reconfirmed its dismissal in administrative appeal. On ultimate appeal to the court, the CBb upheld the ACM's decision, as – in short – Fresh FM had not submitted (sufficient) evidence contradicting the ACM's findings. The CBb emphasised that to consider a certain behaviour abusive, while it is not necessary to demonstrate actual effects, the claimant at least needs to show that the targeted conduct tends to restrict competition or that the conduct is capable of having that effect. Fresh FM had not done this. This approach, which is consistent with the Tomra jurisprudence of the General Court and the European Court of Justice, had already been propagated by the CBb in its decision in the CR-Delta case in 2010.

iv Exploitative abuses

The most high-profile investigation of the ACM involving, inter alia, excessive pricing has been the Interpay case. In this case, the ACM investigated whether Interpay had abused its dominant position on the market for network services for PIN transactions in the Netherlands by charging excessive tariffs to its customers (retailers). Interpay was the only supplier on that market.

To determine whether Interpay's conditions were excessive, the ACM proceeded to assess Interpay's 'return on invested capital' between 1998 and 2001. It compared this return to a benchmark return on Interpay's equity and borrowed capital. The ACM concluded that the return made by Interpay between 1998 and 2001 was five to seven times higher than the calculated benchmark return. According to the ACM, this result was disproportionate. The ACM therefore concluded that the tariffs employed by Interpay amounted to an abuse of a dominant position.

In administrative review, the banks (the shareholders in Interpay) heavily challenged the calculation method of the ACM, supported by economists. One of the main arguments was that the ACM had failed to appreciate the fact that the banks had been investing in the 'PIN project' for many years prior to the period that the ACM had used for its return on investment calculation. Accordingly, the ACM had failed to take into account a large amount of costs (that would have substantially lowered the calculated return on investment).

Further, the banks argued that by only basing its judgment on the return comparison, the ACM fell short of the requirements pursuant to EU (case) law, which prescribes that while an international price comparison is not required, in any event there has to be a direct assessment of the level of the prices itself.

The ACM's standing advisory committee in review proceedings agreed with the banks on these points. Subsequently, the ACM, it its decision in administrative review, referencing that it was 'too much work and too expensive to carry out the research for further investigation', withdrew the part of the fine that was based on abuse of dominance.

In December 2014, the ACM closed its investigation into possible abuse of dominance by pharmaceutical manufacturer AstraZeneca. In December 2011, the ACM sent a statement of objections to AstraZeneca, suspecting it of having abused a dominant position by charging considerably higher prices for its heartburn drug Nexium sold for use outside hospitals (extramural) than when sold inside hospitals (intramural). As a result of the 'hospital-influence effect' – patients tend to continue using the same drug that they have been administered by their hospitals, and physicians are inclined to prescribe the same drug – AstraZeneca allegedly faced little competition with regard to patients that had first been put on Nexium while hospitalised, and could thus offset the losses incurred by offering Nexium to hospitals at a deep discount with higher extramural prices. The ACM concluded, however, that AstraZeneca had not violated the prohibition on abuse of dominance because it could not be sufficiently determined that AstraZeneca had indeed held a dominant position. In its decision, the ACM distinguished an intramural market and an extramural market consisting of users who, as a result of the hospital-influence effects, should be considered captive to Nexium. AstraZeneca did not have a dominant position on the intramural market since it held a market share of less than 40 per cent. Regarding the extramural market, AstraZeneca's arguments regarding substitution, therapeutic effectiveness and switching behaviour had raised reasonable doubts as to whether a group of Nexium users would indeed be bound to Nexium through the hospital-influence effect on such a scale that, with regard to this group, AstraZeneca was able to behave independently of its competitors. In April 2014, the ACM published a commitment decision relating to a possible abuse of a dominant position.

In February 2018, the Rotterdam District Court ruled on excessive pricing in a private enforcement case against Videma. Videma is a collecting society that issues licences for TV transmission in hotels, hospitals, pubs, healthcare institutions, etc. As a collecting society it has a dominant position. Hospitals had to pay royalties to Videma for TV transmission within the hospitals and claimed that the royalties were excessively high, and, therefore, abusive. The Court appointed copyrights experts of the Consumer Complaints Boards as expert witnesses to answer questions relating to the royalty rates. A reliable international benchmark was not available, since in many EU Member States, hospitals do not pay royalties for TV transmission, and, in countries where royalties were paid, the bundle and number of TV channels were not comparable. The experts concluded that the royalties had increased excessively and that Videma was not able to give an objective justification for the increase. Therefore, the Court held that Videma abused its dominant position and referred the case to a follow-up proceeding for the determination of damages.