A district court recently dismissed a €1 billion damages claim that Europe Container Terminals brought against the Rotterdam Port Authority. The ruling underlines the need for claimants to make thorough market analyses and well-substantiated arguments in damages claims with regard to abuse of dominance claims.
Two recent rulings show that Dutch courts are willing to take a stance on cartel damage claims. A district court recently confirmed the civil liability of cartel participants and their group entities in the gas-insulated switchgear cartel, while another district court rejected a request for provisional witness hearings in an air freight case.
Following the Streamlining Act, a single body has replaced the competition, consumer and telecommunications regulators: the Authority for Consumers and Markets. The act also introduces a number of changes concerning merger control, appeals against fines and employees' right to remain silent in case of an investigation against their former employer.
The Rotterdam District Court recently ruled that the Authority for Consumers and Markets (ACM) should have granted a leniency applicant full immunity from fines after it confessed to its involvement in a cartel. The ACM argued that the leniency applicant was eligible only for a fine reduction instead of full immunity, because the ACM had launched an investigation into the cartel before the leniency applicant had filed its application.
The District Court of Amsterdam recently found itself competent to rule on damages claims against the non-Dutch participants of a sodium chlorate cartel through anchor defendant Akzo Nobel. The arbitration and choice of forum clauses laid down in the customer contracts did not alter this. Companies should keep in mind that they cannot always rely on these clauses in cartel damages claims.
The Trade and Industry Appeals Tribunal recently ruled that the Authority for Consumers and Markets (ACM) was wrong to fine the Dutch National Association of General Practitioners (LHV) for breaking a seal affixed by ACM officials during a dawn raid. According to the tribunal, the breaking of the seal could not be attributed to LHV and it therefore quashed the fine.
According to a recent decision of the Trade and Industry Appeals Tribunal, the Authority for Consumers and Markets (ACM) was wrong to find that the relevant market should be limited to each individual tender project when applying the national de minimis clause to systematic bid-rigging cartels. The tribunal also clarified that the five-year limitation period relates only to the ACM's power to impose a fine.
The Rotterdam District Court has upheld the way in which the Authority for Consumers and Markets (ACM) calculated the fines imposed on a number of companies for participating in a silverskin onion cartel. The cartel participants generated 60% of their combined turnover within the European Union. For the first time, the ACM based the fines imposed on the cartel participants' EU-wide turnover instead of national turnover.
The Rotterdam District Court has overturned the fines imposed on Pilkington and Scheuten for their participation in a double glazing cartel. This ruling has far-reaching consequences for how the ACM should accumulate evidence based on leniency statements. The ACM should limit itself to what leniency applicants can state by their own account.
The European Commission is proposing a regulation on interchange fees for card-based payment transactions, which will introduce caps on domestic and cross-border interchange fees. These caps are to be set at 0.3%. This is good news for retailers and consumers, as capping fees will reduce retailers' costs and should create lower prices for goods and services.
The Rotterdam District Court has upheld a Dutch Authority for Consumers and Markets (ACM) decision to prohibit a transaction between two rival baking companies due to a high combined market share on the Dutch rusk market. Parties thus should not count on the ACM to take earlier precedents to heart when defining relevant markets.
A bill to enhance the deterrent effect of cartel fines is being prepared. The bill links the level of the statutory maximum fine to the duration of the infringement – instead of the company's annual turnover – with a four-year maximum duration. To prevent hefty fines, companies should ensure that their compliance programmes are sufficiently effective in detecting potential cartel infringements.
The Competition Authority (ACM) has published new digital dawn raid guidelines specifying how it uses its powers to inspect and copy digital media. The guidelines establish legal safeguards that the ACM inspectors will observe and provide safeguards for data covered by legal professional privilege.
Denial appears to be the best strategy to prevent the Authority for Consumers and Markets from publishing a decision to impose a fine and thus branding a company a cartel infringer. The district court recently granted only one request to prohibit publication of a decision on a fine. The successful applicant had explicitly denied its involvement in the alleged cartel.
Companies should beware of the civil enforcement risks of anti-competitive clauses when carrying out contract negotiations. The Supreme Court recently confirmed that the cartel prohibition's nullity penalty prevents not only clauses with an anti-competitive object, but also those with an anti-competitive effect, from being converted into valid ones.
The Supreme Court has ruled that an exclusive purchasing clause had an anti-competitive object, as it was concluded between parties that had a vertical as well as horizontal relationship with each other. This shows that one cannot blindly rely on EU case law on exclusive purchasing clauses in vertical relationships: one must first understand the legal and economic context of each case.
Price signalling is back on the agenda of cartel enforcers. The Authority for Consumers and Markets concluded its mobile telecommunications sector investigation with no evidence of price fixing, but nevertheless intends to force mobile operators to refrain from making public announcements on planned price increases, which could lead to collusion. The mobile operators have committed to comply.
To prevent antitrust skeletons from coming out of the closet after an acquisition, it is advisable not only to perform due diligence, but also to keep an eye on the duration of the liability provisions in the purchase agreement. A court recently stayed proceedings to prevent a seller's liability from lapsing before the Authority for Consumers and Markets had issued a report on a possible cartel infringement by the target prior to it being purchased.
The Netherlands appears to be an attractive jurisdiction for cartel damages proceedings for both cartel victims and cartel members. In two recent cartel damages rulings, concerning the air-cargo and gas-insulated switchgear cartels, the Dutch courts have kept up the pace.
Beware of competition rules when introducing incentive programmes. A district court recently assessed the anti-competitive effects of a bonus programme introduced by Mars, whereby Mars enticed vendor petrol stations to display its products prominently. The practice was compared to a category management agreement. Expert advice is needed before reaching conclusions on its appreciability.