On 15 August 2014, the Dutch Authority for Consumers and Markets ("ACM") published its decision on the administrative appeal of four companies, which it had previously fined for cartel practices in the Dutch launderettes sector. The ACM reduced the fines imposed on the launderettes by 30% due to excessive duration of the administrative procedure.
In its initial decision of 8 December 2011, the ACM had concluded that the four companies had divided between themselves the Dutch market for laundry services to healthcare providers. They also agreed not to compete with each other outside their allocated geographic area. The ACM had imposed fines for a total of EUR 18 million on the launderettes for their illegal behaviour between 1998 and 2009.
In its decision on the administrative appeals the ACM dismissed all substantive arguments of the launderettes against its finding of an infringement of the cartel prohibition. However, the substantial reduction of the fines was based on the ACM's failure to conclude its investigation and adopt a final decision within a reasonable period. During the administrative phase, the ACM issued an additional Statement of Objections ("SO") without merit. That is, the information contained in the additional SO could not be used as evidence to support the infringement as previously established by the ACM. Because of the excessive duration of the administrative procedure, partially caused by the issuing of the additional SO, the ACM reduced the fines of each addressee by 30%. A period of three years and three months elapsed from the issuance of the ACM's SO to the decision on the administrative appeal. On the basis of settled case law a duration of two years for this period is considered reasonable.
Interestingly, the ACM did not impose a cap on the reduction of the fines for the unreasonable duration of the administrative procedure. This resulted in a total fine reduction of EUR 5.2 million. Recent successful complaints in other cases before the District Court of Rotterdam and the Trade and Industry Appeals Tribunal ("CBb") concerning the unreasonable length of administrative and judicial proceedings only led to minor fine reductions due to the application of a cap. The CBb has set the cap at EUR 10,000 for situations in which the duration of the proceedings exceeded the average reasonable duration by twelve months or less. Both courts decide on a case-by-case basis on the appropriate cap for proceedings in which the average reasonable duration is exceeded by more than one year. For example, in the Shrimps case, in which the average reasonable duration of the administrative and judicial proceedings was exceeded by two and a half years, the CBb set a cap of EUR 55,000. It remains to be seen whether the ACM's more generous approach of uncapped fine reductions will have implications for the future approach of the appeal courts.