Short Reads

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

03.07.2017 NL law

On 29 June 2017, the Authority for Consumers and Markets (ACM) published the non-confidential version of a decision imposing a fine of EUR 40.95 million on Dutch railway operator NS for an alleged abuse of dominance. The ACM closed its investigation into NS' former CEO and CFO, finding insufficient grounds to hold them personally liable for the alleged infringements (decision I, decision II).

The ACM found that NS abused its dominant position on the 'main railway network' in the Netherlands by committing two separate infringements in relation to a public transportation tender in Limburg in 2014. The winning bidder gained the right to provide all bus and train transportation services in Limburg for a period of 15 years.

The first infringement concerns a predatory pricing allegation. According to the ACM, NS' subsidiary Abellio submitted a "lossmaking bid" in the Limburg tender procedure. The ACM concluded that NS' expected costs (including the cost of capital) would exceed its expected revenue. As a result, the ACM found that its competitors "could not match or surpass NS’ bid without suffering losses themselves".

The second alleged infringement concerns a combination of various forms of conduct. The ACM found that NS (i) received confidential information from a former director of one of its competitors, (ii) delayed its response and provided incomplete information to its competitors when requesting access to NS' facilities in Limburg (e.g. at train stations), and (iii) passed on confidential information it received from competitors to its own subsidiary Abellio. The ACM concluded that these various forms of conduct, taken together, constituted an abuse.

According to the ACM, both infringements were aimed at preventing NS' competitors from "proving themselves in Limburg". According to the ACM, if a competitor had won the tender, this may have led to further decentralization of the main railway network, in which NS holds a dominant position.

NS – and its shareholder the Dutch Ministry of Finance – announced that it will appeal the decision.

This article was published in the Competition Law Newsletter of July 2017. Other articles in this newsletter:

  1. Google gets a record EUR 2.42 billion antitrust fine for its shopping service
  2. Recent European Commission merger decisions signal an increased focus on innovation
  3. New Belgian Act on damage claims for competition law infringements

Team

Related news

01.05.2018 EU law
Germany did not err in extraditing an Italian citizen to the US for a competition law infringement

Short Reads - On 10 April 2018, the European Court of Justice ruled that Germany did not breach EU law by extraditing an Italian citizen to the United States for a competition law infringement in a situation where Germany's constitutional law does not permit extradition of its own nationals. The case highlights that extradition to the US for competition law infringements can be a real possibility for EU citizens.

Read more

09.05.2018 NL law
FAQ: Hoe is de bestuurlijke handhaving van de Algemene verordening gegevensbescherming (AVG) vormgegeven?

Articles - Op 25 mei 2018 treedt de Algemene verordening gegevensbescherming ("AVG") in werking. De verordening heeft rechtstreekse werking in het Nederlandse rechtssysteem. Het gevolg daarvan is dat de Nederlandse privacywaakhond, de Autoriteit Persoonsgegevens, een scala handhavingsinstrumenten op grond van de AVG kan inzetten om naleving van de privacywetgeving te bevorderen.

Read more

01.05.2018 EU law
European Commission imposes record fine on Altice for premature implementation of PT Portugal acquisition

Short Reads - On 24 April 2018, the European Commission announced that it had imposed a fine of EUR 124.5 million on Altice for acquiring control of PT Portugal before clearance by the Commission ('gun-jumping'). The fine is more than six times the amount which was previously imposed by the Commission for similar offences [see our November 2017 Newsletter for a discussion of the Marine Harvest case]. The Commission's recent enforcement actions against gun-jumping violations highlight the importance of strict competition law compliance during M&A transactions.

Read more

01.05.2018 EU law
European Commission proposes draft Regulation on online platforms and search engines

Short Reads - On 26 April 2018, the European Commission proposed a draft EU Regulation on key aspects of the contractual relationship between online platforms and their business users. The aim of the proposed Regulation is to create a fair and transparent business environment for smaller businesses and traders that use online search engines and online platforms to reach consumers. The proposed Regulation would be the first EU legislation to specifically address business-to-business relationships of this kind.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring