On 24 April 2012 the Industry and Trade Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb) published its judgment (LJN: BW3671) regarding a fine imposed by the NMa for bid-rigging between gardeners. The CBb found that the NMa wrongfully decided to take the turnover generated over a period of three years as the basis for the calculation of the fine. The CBb furthermore ruled that the NMa's decision to increase the fine by 30% for aggravating circumstances breached the principle of legal certainty. It follows from the judgment that only circumstances that relate to the infringing undertakings themselves may be considered as aggravating circumstances. The fact that the NMa has imposed several fines for bid-rigging on other undertakings may therefore not be a reason to increase the fine on the gardeners.
In its decision the NMa fined eight gardeners for their participation in a bid-rigging scheme concerning a tender for gardening services in the municipality of Maastricht. The infringement consisted of a meeting in February 2004 preceding the tender. During this meeting the gardeners partitioned the market in Maastricht into five separate areas in which they would not compete with each other. After the first round of the tender-proceedings, the municipality decided to end the tender and to commence negotiations with the lowest bidders for each separate area. Initially, the tender concerned the provision of gardening services for a period of one year (2004). During the individual negotiations however the municipality decided to extend the duration of the contract to three years (2004-2006).
According to the fining guidelines of the NMa in case of bid-rigging the relevant turnover to determine the fine for each of the infringing companies consists of the turnover that could be generated on the basis of the offer that has been successful in the tender-proceedings. On this basis the NMa took into account the relevant turnover for three years. However, the CBb ruled no sufficient link existed between the meeting in February 2004 and the turnover that the gardeners could have obtained from the contract with the municipality in 2005 and 2006. The CBb reasoned that the gardeners could not have been aware of the municipality's later decision to extend the duration of the contract to three years. In view hereof the CBb ordered the NMa to amend its decision accordingly.
The NMa had furthermore in its decision increased the fine by 30% for aggravating circumstances. These circumstances concerned (i) the fact that the European Commission had already imposed fines for bid-rigging in the Dutch construction sector in 1992, (ii) the revelations in 2001 of a nationwide construction fraud for which several fines had been imposed and (iii) the great political unrest in 2004 when it was revealed that bid-rigging still occurred on a regular basis. However, the CBb ruled that an increase of the fine by 30% constitutes a violation of the principle of legal certainty since the NMa's own fining guidelines only refer to aggravating circumstances that relate to the position and the conduct of the infringer(s), such as being a ringleader or a repeat-offender. The gardeners could therefore not have foreseen that the NMa would increase the fines by 30%.
The CBb ordered the NMa to adopt a new and improved decision within a prescribed period (of 6 weeks). The judgment once again demonstrates that the CBb does not refrain from critically reviewing all details of a penalty decision of the NMa.