Contrary to the European Commission3 and most jurisdictions, the NMa considers the purchaser and seller jointly responsible for the notification of (sole control) acquisitions under the Dutch merger rules. In December 2010, the NMa imposed fines of EUR 1,730,000 and EUR 677,000 on a seller and a purchaser, respectively, for failure to notify a concentration.4 However, this may be the NMa’s last fine on a seller, given the District Court of Rotterdam’s recent decision that a seller holds no responsibility for filing a concentration meeting the Dutch turnover thresholds.5
Sellers fined so far
Since the entry into force of the Dutch Competition Act (DCA) in 1998, the NMa has fined 10 sellers for failure to notify a concentration. The most recent case concerned a fine of approximately EUR 1.7 million on a seller in the acquisition of sole control in December 2010.6 The NMa rejected the seller’s argument that it should follow the EU Merger Regulation’s practice of holding the purchaser solely responsible for the notification of acquisitions. According to the NMa, a joint notification duty for seller and purchaser follows from the wording of Article 34 DCA and the DCA’s Explanatory Memorandum. Article 34 DCA provides that “it is prohibited to implement a concentration (before the [NMa’s] Board has been notified of the intention to do so (…))”. The NMa finds that because a seller contributes to the implementation of the concentration by transferring control to the purchaser, both seller and purchaser are responsible for notification. This joint responsibility is confirmed by the Explanatory Memorandum’s use of the plural form, i.e., “parties”, “joint initiative”, “each”, “the other” and “all”, when discussing the notification responsibility. The NMa did consider the fact that the ICN Template available on its website7 contained incorrect information in regard of the seller’s duty to notify a mitigating circumstance and reduced the fine by 20%.
No notification responsibility for Seller
In January 2011, the Rotterdam District Court ruled that the NMa wrongfully imposed a fine on a seller for failure to notify an acquisition of sole control. The NMa imposed a (in administrative appeal corrected) fine of EUR 22,500 on the seller in 2008 on the basis of reasoning similar to that above. The Court ruled that if the NMa’s reasoning were followed, this would lead to the peculiar situation that a seller realises the concentration, although its turnover is not taken into account in determining whether the turnover thresholds are triggered. The Court also considered it illogical from a competition law perspective for a seller to have a notification duty, since the seller is the party who transfers control and thus loses market position. The Court, furthermore, referred to the EU Merger Regulation to support its reasoning that sellers are not caught by the notification duty laid down in Article 34 DCA in cases of (sole control) acquisitions.
It is unknown whether the NMa intends to appeal the Court’s ruling. It thus remains to be seen if and when the NMa will adjust its fining policy for a seller’s failure to notify acquisitions of sole control. In joint control situations all parties acquiring joint control have the duty to notify. The NMa’s fining policy in regard of notification of such concentrations obviously remains unaltered.