On 12 April 2018, the District Court of Rotterdam quashed four fines imposed by the Dutch Authority for Consumers and Markets (ACM) on cold storage operators and their respective directors for violating the cartel prohibition. The fines have been annulled as a result of numerous deficiencies in the ACM's investigation and reasoning.
On 22 December 2015, the ACM established three separate infringements in the sector for cold storage services and fined four Dutch cold storage operators and five individuals, in their capacity as 'de facto leaders', EUR 12.5 million in total. The ACM found that the operators had been engaged in talks on a potential merger between 2006 and 2009. In that context, the operators had exchanged sensitive information in relation to their capacity, tariffs and customer orders. The ACM considered that these contacts constituted a single and continuous infringement of the cartel prohibition.
However, some of these operators and individuals have been successful in their appeals against fines imposed by the ACM. In two cases(judgments1 and 2), the District Court sided with the appellants who argued that the ACM was time-barred from pursuing a case against them as it had not suspended the five year prescription period by undertaking any investigatory actions since the infringement had ended. The District Court acknowledged that the ACM had investigated certain activities in the cold storage sector (i.e. those related to cold storage of fruit juices and concentrates), but not the activities for which the relevant appellants were charged (i.e. cold storage of fish). Therefore, it could not be argued that the former investigatory actions suspended the prescription period in the investigation with regard to the latter activities.
The District Court also found (judgment 3) that the ACM had not adequately investigated the appreciability of the alleged restriction of competition in another judgment. In that context, it observed that the ACM had ignored indications in the file that pointed towards a broader relevant geographic market. If such broader market were found to exist, the appreciability criterion may not have been found to be fulfilled. On that basis the Court quashed the relevant fine.
Finally, the District Court addressed(judgment 4)an argument related to the single and continuous infringement raised by some of the appellants. It found that the ACM had unwarrantedly considered numerous exchanges between the parties to be part of an overall plan to restrict competition. The District Court observed that various exchanges, upon closer review, could have been part of legitimate talks to explore a transaction. However, the ACM had indiscriminately qualified all of those instances of conduct as part of the alleged single and continuous infringement. In doing so, the ACM infringed its obligation to duly motivate its decision. The District Court quashed the relevant decisions on this basis.
These judgments follow the annulment of the ACM fines imposed on real estate traders active on the market for the sale of houses under execution[see ourAugust 2017 Newsletter].