Although the number of cartels that is fined annually by the Dutch Authority for Consumers & Markets (’ACM’) is not very high, that is not to say that ACM has been twiddling its thumbs over the past few years. For enforcement activities, ACM uses a mix of instruments such as informal opinions, market scans, supervisory principles, commitment decisions, and of course fines. The ACM is expected to fine more cartels in 2017, but also to continue its alternative enforcement policy which is often pragmatic. The administrative court will continue to critically review ACM’s (fining) decisions.
ACM will continue to monitor the harbour and transport sector this year. The findings of an investigation carried out by ACM show that knowledge of and compliance with competition rules in the port area is limited. ACM is currently in discussions with companies and industry associations about how and in what way information is exchanged. There will, however, continue to be room for collaboration. For example, ACM has announced that it has no objections to agreements between container companies for the purpose of preventing forced redundancies due to automation in the container sector.
This year, the results are expected of an ACM market study of online platforms that offer video streaming services, such as YouTube, Uitzending Gemist (Replay Television), Dumpert and Netflix. ACM will look into whether certain providers of these services have market power, which can be an obstacle to innovation. It remains to be seen whether this market study will actually offer ACM grounds for taking enforcement action.
ACM has recently provided more insight into the way it will approach sustainability agreements, such as quality marks and standardisation agreements. ACM will exercise restraint in this respect. In the supervisory principles it has published, ACM makes clear that it will only investigate sustainability agreements in the case of complaints and, where necessary, implement solutions quickly. This will better enable market parties to take sustainability initiatives. Previously, ACM introduced a specific enforcement policy for primary care in which it announced a comparable approach: only when complaints are received, it will take action, and its actions will primarily be focused on solving the problem (read: not immediately launch an investigation focused on imposing a fine).
On the other hand, a number of extensive cartel investigations are still ongoing in 2017. In these investigations, ACM is not exclusively focused on ‘traditional’ cartels, such as price and market-sharing agreements, but also on other behaviour such as information exchange or certain forms thereof. In these cases, ACM may impose steep fines, but may also make use of commitments or simplified proceedings. The European Commission is apparently working on a new accelerated procedure whereby discounts of up to 30% are to be granted for more far-reaching cooperation. ACM may follow the European Commission's footsteps and expand its policy in this regard. This would help persuade companies to intensify their cooperation with ACM.
Critical judicial review
While things were going well for ACM last summer, during autumn 2016, ACM appeared to be less successful in court. For example, in the taxi case the District Court of Rotterdam annulled the fines imposed by ACM because ACM had not adequately investigated the geographical market in which the taxi companies were operating. As a result, it could not be verified whether the illegal agreements only limited competition to a very marginal degree. The decision of the District Court of Rotterdam is in line with the trend in which administrative courts subject ACM's fining decisions to critical review. ACM lodged an appeal against this decision with the Trade and Industry Appeals Tribunal (the “CBb”).
Furthermore, the CBb reduced fines in the first-year onion sets cartel due to the limited practical consequences of the infringement. A comparable case is that of Home care Friesland, in which the CBb significantly reduced the fine because of the limited intensity of coordination between the parties. This shows that the CBb is generally more sympathetic to the circumstances of the case than ACM. These fine reductions are particular striking in light of ACM’s recently introduced power to impose significantly higher fines than before.
The decision of the District Court of Rotterdam in the flour cartel was a boost for ACM. As regards the flour cartel, ACM fined two investment companies for anti-competitive practices of their portfolio companies. The question which was put forward in court was whether ACM had not stretched the doctrine of parental liability too far. The District Court of Rotterdam confirmed ACM's view: investors can be held liable for cartel offences committed by portfolio companies.
In the near future, the CBb will assess a number of interesting questions such as the application of the cartel prohibition in the context of franchises (laundry cartel), the need to define the geographical market in cartel investigations (taxi case) and ACM's discretion to qualify multiple behaviours jointly as an object infringement and as a single continuous infringement (auction of sales under execution cartel).