Whistleblowers who have had their fine reduced to zero may still have an interest in challenging an antitrust decision. The Dutch Authority for Consumers and Markets (ACM) held two de facto managers personally liable for a cartel infringement but, instead of imposing a EUR 170,000 fine, granted one of them immunity from fines in return for blowing the whistle. The Trade and Industry Appeals Tribunal found that, despite this fortuitous outcome, the whistleblower still had an interest in appealing the ACM's decision.

The principle of equality could affect the whistleblower's qualification as de facto manager and/or the fine level set to be paid if no leniency had been granted. It is therefore good for whistleblowers, even when content with their immunity from fines, to maintain a view of the bigger picture when deciding whether to appeal.

In 2017, the ACM imposed fines on three companies and two de facto managers for price fixing. The ACM considered a fine of EUR 170,000 appropriate for one of the de facto managers but, after the manager had fulfilled all the leniency conditions required for fine immunity, imposed no fine.

On appeal, the de facto manager argued that, even though no fine had been imposed, he could still appeal the ACM's decision. In the decision, the ACM had held him personally liable for the cartel infringement and had set a fine, which he would have had to pay if no leniency had been granted. According to the de facto manager, his interest in appealing the decision followed specifically from the fact that:

  1. he could face a potential fine increase for recidivism if he was to commit a similar infringement at a later stage,
  2. he would still need to pay the EUR 170,000 fine if he failed to fulfil the leniency conditions throughout the proceedings, and
  3. a court could rule that the other de facto manager had not committed an infringement, on grounds similar to those applicable to him.

Contrary to the Rotterdam District Court's findings in first instance, the Trade and Industry Appeal Tribunal ruled that the de facto manager did have an interest in bringing legal proceedings, particularly as the principle of equality could, in appeal, result in the court concluding that he was unjustly qualified as a de facto manager of the infringement or unjustly fined for an amount of EUR 170,000.

It is therefore advisable for whistleblowing companies and individuals to keep all consequences in mind when considering whether it is worthwhile to appeal, and not necessarily treat the absence or reduction of a fine as decisive.

This article was published in the Competition Newsletter of September 2019. Other articles in this newsletter: