After the preliminary ruling by the European Court of Justice (ECJ) in the T-Mobile case, the NMa needs to reexamine the decision in which it imposed fines on a number of mobile operators for a one-off exchange of information on reductions in dealer bonuses for sales of post-paid mobile telephone subscriptions. Quite surprisingly, the Trade and Industry Appeals Tribunal (Tribunal) ruled that Article 6 of the European Convention on Human Rights implies that the mobile operators do not have to conclusively prove that the concerted practice did not affect their market conduct.
The mobile operators case relates to the fines imposed by the NMa for an alleged concerted practice between four Dutch mobile telephone operators. The fine was based on a violation of Article 6 of the Dutch Competition Act and Article 101 TFEU.
In appeal, the Rotterdam District Court ordered the NMa to reconsider the fines imposed on the remaining operators, given the NMa’s inadequately substantiated disregard of the operators’ objections, particularly the operators’ evidence disproving the causal link between the meeting and the subsequent parallel behaviour on the market. In further appeal, the Tribunal sought guidance from the ECJ on the interpretation of the concept of concerted practice and the presumption of a causal link between the concerted practice and market conduct.
Taking account of the ECJ’s preliminary ruling, the Tribunal considered that the NMa correctly qualified the exchange of information as a restriction by object. Subject to proof to the contrary, to be adduced by the undertakings concerned – it must be presumed that the mobile operators in the concerted practice that remain active on that market, take account of the information exchanged with their competitors. Surprisingly, the Tribunal ruled that Article 6 of the European Convention on Human Rights prevents this from meaning that the mobile operators need to conclusively prove the contrary. Instead, it is enough for them to provide sufficient evidence to refute the presumption.
The Tribunal therefore ordered the NMa to reassess the evidence adduced by the mobile operators to rebut the presumption of a causal link. In addition, the NMa will need to (re)examine the actual effects of the infringement on the market in order to (re)set the level of the fine.