On 17 July 2014 the District Court of Rotterdam (the "Court") issued judgments relating to an alleged cartel on the Dutch market between Dutch, Belgian and German milling companies. The Netherlands Authority for Consumers & Markets ("ACM") originally fined 15 milling companies for approximately EUR 82 million for a cartel infringement, including an agreement not to poach each other’s customers. The Court confirmed the ACM's finding of a single continuous infringement. However, the Court found that the ACM had not adduced sufficient proof of an infringement for six individual companies. Furthermore, the Court decided another company should have received full immunity from fines instead of just a reduction of its fine for bringing the cartel to light.
The Court ruled that the ACM had found sufficient evidence of the existence of a single continuous infringement on the basis of leniency statements and supporting documentation. The Court considered that even though the leniency applicants had described the cartel in different wordings, the main elements of the alleged single continuous infringement were sufficiently similar.
However, the Court found that the ACM had adduced insufficient proof for the participation of certain individual milling companies in this infringement. The Court stated that there was no or insufficient evidence corroborating the alleged participation of these milling companies, who had denied their involvement, also in view of proposed alternative interpretations of the evidence the ACM relied on.
Another interesting aspect of the judgments is the Court's consideration that the first leniency applicant should have received full immunity from fines instead of a reduction. The Court found that this leniency applicant had formally decided to start the investigation by submitting its application before the Board of the ACM. Contrary to the ACM's view the Court held that an internal ACM email about the matter, which was sent on a date before the leniency application, cannot be qualified as the start of an investigation by the ACM.
The judgments are open for appeal to the highest administrative court, the Trade and Industry Appeals Tribunal and can be found through the following links: Joined Cases ROT 12/1710, 12/1721, 12/1722, 12/1764, 12/1765, 12/1766, 12/1804, 12/1809, Case ROT 12/1810, Case ROT 12/1762 and Case ROT12/1784.