On 17 August 2012, the Dutch Competition Authority ("NMa") issued an adjusted fining decision in a case concerning the implementation of a concentration before notification (Case 6905). In the revised decision the NMa adjusted the multiplying factor from 2 to 1 for the seriousness of the infringement, which led to the fine being halved from that originally imposed (decision of 17 December 2010). The NMa's decision to revise its original decision was probably influenced by a recent judgment of the District Court Rotterdam, in which it held that for "other infringements" such as the non-notification of a merger and the breach of a seal, the standard seriousness factor should be 1, save for special circumstances (LJN: BW9126).
The original fining decision was the first case under the 2009 fining policy rules of the Minister of Economic Affairs ("2009 fining policy rules") concerning a non-notification of a merger. Under the previous fining policy (the 2007 fining code of the NMa), the multiplier for the seriousness of an infringement was 3 at a maximum. Back then, the NMa usually applied a factor of 1 in cases concerning non-notification of a merger. The 2009 fining policy rules provide for a multiplier factor for the seriousness of an infringement ranging from 1 to 5. According to the NMa, the rationale of the 2009 fining policy rules was to fine infringements more heavily. Therefore, it applied a seriousness factor of 2.
In the abovementioned judgment that related to the breach of a seal, the District Court Rotterdam held that for "other infringements" the seriousness is in principle already factored in the level of the fining category (see the 2009 fining policy rules, that provide for six fining categories for "other infringements" based on the seriousness of the infringement). Therefore, as a matter of principle the multiplying factor for the seriousness of an infringement should be set at a neutral factor of 1. This is save for special circumstances that could justify a higher or a lower seriousness factor. The Court considered that there were no such special circumstances in the case at hand.