On 10 July 2013, the District Court of Central Netherlands ruled that Equens abused its dominant position. The case was brought before the Court by a customer, European Merchant Services (EMS), who was awarded part of its claimed damages.
EMS processes credit card transactions and closes contracts with "merchants". The closing of these contracts is referred to as acquiring. The transactions are processed via the merchant's terminals that are linked to a network. Besides owning such a network, Equens indirectly holds shares in PaySquare, EMS' competitor.
In September 2007 Equens introduced the "queue procedure". A direct effect of this procedure was that merchants wanting to change acquirer would need their current acquirer's help to connect to the new acquirer. EMS stated that Equens introduced this feature to provide PaySquare with the opportunity to frustrate the switch of its customers.
In determining whether Equens had a dominant position, the Court considered that the acquirers could not easily choose a different network, since 70% of the terminals made use of a specific protocol that only worked with Equens' network. Since all the transaction data exclusively originated from terminals, the Court assumed that the aforementioned 70% provided a clear indication of Equens' market share and, accordingly, of its dominant position.
The Court moreover found that Equens had abused its dominant position. According to the witness statement of a commercial manager at PaySquare, it convinced customers to stay by counteroffering through queue procedure. Consequently, the transfer was often delayed or even prevented. The Court continued by stating that the procedure was furthermore not objectively justified, as was demonstrated by the fact that the queue procedure was retracted on 25 February 2008. The fact that the 'old' procedure resulted in extra costs did not turn the queue-less procedure into an unreasonable alternative.
After establishing EMS' unlawful conduct, the court reviewed the claimed damages. EMS claimed damages for loss of turnover, discounts offered to counter PaySquare's offers and the cost for the extra work of its employees due to the negative effects of the queue procedure. The offered discounts were deemed awardable. The loss of turnover was however dismissed. The Court ruled that merely showing that fewer merchants were acquired during the queue period did not mean that this was the direct consequence of the queue procedure and PaySquare's conduct. No final ruling was issued, however, as the Court offered Equens the possibility to specify the claimed extra work.
This is one of the few cases in the Netherlands concerning abuse of dominant position. It moreover is a rare example wherein damages were actually awarded in relation to the infringement of the prohibition of the abuse of a dominant position.