On 12 June 2014, the Rotterdam District Court (the "Court") rendered its interlocutory decision in the pepper cartel case. The Court held, amongst others, that the Authority for Consumers and Markets ("ACM") erred in basing the economic unity of undertakings on personal ties only. Furthermore, the Court stated that the ACM did not properly underpin the calculation of the imposed fines.
In its decision, the Court pointed out that the ACM based the existence of an economic entity on the fact that personal ties existed between several legal entities. The Court noted that the ACM only took the relevant persons or, as the case may be, legal persons into account. According to the Court, however, the ACM reports, on which the fining decision is based, must also mention the capacity of the persons and/or legal persons in the relevant undertaking in relation to facts that are held against them. However, in its fining decision the ACM addressed the legal persons on which a fine was imposed in a different capacity than in the underlying reports. The Court concluded that by doing so the ACM breached the parties' defence rights.
Regardless of the fact that the fining decision could not be upheld in this respect, the Court stated that the ACM did not forfeit its power to fine the legal persons mentioned in its reports. The principle of ne bis in idemcould not prevent this. However, the Court emphasized that the ACM's report must provide a solid basis with regard to the acts and the attribution thereof to the relevant parties. If the reports provide such solid basis, fines can still be imposed.
The Court also determined that the ACM did not properly calculate the relevant turnover of some appellants. According to the appellants' annual accounts, the relevant turnover should have been lower. As the property rights of the peppers were transferred directly from the grower to the buyer, the turnover generated by the auctioning of peppers could not be attributed to the appellants, which functioned as commission merchants. The Court stated that the ACM failed to properly substantiate the calculation of the relevant turnover. In addition, the Court held that the ACM did not provide a solid basis for its decision to deviate from its regular fining policy.
The Court decided to refer the fining decisions back to the ACM to issue a ruling consistent with the above.