Articles

Dutch Trade and Industry Appeals Tribunal ruled that national courts should apply the same standard of review to Phase-I and Phase-II merger decisions

Dutch Trade and Industry Appeals Tribunal ruled that national courts should apply the same standard of review to Phase-I and Phase-II merger decisions

Dutch Trade and Industry Appeals Tribunal ruled that national courts should apply the same standard of review to Phase-I and Phase-II merger decisions

03.11.2015 NL law

On 6 October 2015, the Dutch Trade and Industry Appeals Tribunal ("CBb") fully upheld an earlier ruling by the District Court of Rotterdam [see our June 2012 newsletter]. In essence, the appeal process was initiated by Ziggo B.V. (now a part of Liberty Global  plc.) against the ACM's 2008 conditional Phase-I decision, clearing the creation of a joint venture ("JV") between KPN and Reggefiber. With this judgment, the ACM's underlying decision has become final.

In the judgment at hand, the CBb for the first time considered whether courts should apply the same standard of review to (the legality of) the ACM's Phase-I and Phase-II merger decisions. In its cross-appeal, the ACM attempted to argue that since it is bound to apply different substantive tests in its Phase-I and Phase-II decisions, each should warrant a separate standard of review by the courts. The CBb, however, dismissed the ACM's arguments and held that the same (thorough) standard of review should apply, regardless of the phase in which the ACM decision has been concluded.

On appeal, Ziggo argued that certain facts had come to light after the ACM issued its clearance decision that cast doubt on its framework of assessment and ultimately on the remedies imposed on the JV in Phase-I in 2008. Despite the apparent setback for the ACM as regards the standard of review, the CBb dismissed Ziggo's appeal. Since the court is bound to review the ACM's decision based on the facts available to the ACM at the time (i.e. an ex tunc  review), subsequent market developments are irrelevant for the lawfulness of the decision. Ultimately, the court held that Ziggo failed to adduce sufficient evidence to prove that the information available to the ACM at the time was unreliable or otherwise insufficient to clear the JV subject to the conditions imposed in Phase-I.

It is interesting to note that since its 2008 decision, the ACM unconditionally cleared the acquisition of sole control by KPN over Reggefiber on 31 October 2014 after a Phase-II investigation. That decision is subject to appeal before the Rotterdam District Court.

This article was published in the Competition Law Newsletter of November 2015. Other articles in this newsletter:

Back to top

Team

Related news

01.06.2022 NL law
The new VBER is here! Time to update your distribution agreements

Short Reads - The new Vertical Block Exemption Regulation (VBER) entered into force on 1 June 2022. The new VBER is stricter on dual distribution and across-platform retail parity obligations than the old one, but is more lenient towards active sales and online sales restrictions. It also provides more guidance on the rules for exclusive and selective distribution systems.

Read more

01.06.2022 EU law
Park your parking structures: EU Court upholds Canon’s gun jumping fine

Short Reads - Companies involved in M&A transactions had better think twice before temporarily parking a target undertaking with an interim buyer. On 18 May 2022, the General Court upheld the European Commission's EUR 28 million gun jumping fine imposed on Canon for partially implementing its two-step takeover of Toshiba Medical Systems Corporation (TMSC) prior to notification and clearance.

Read more

01.06.2022 NL law
AG Emiliou: careful treading in hybrid cartel procedures

Short Reads - On 12 May 2022, Advocate General (AG) Emiliou delivered his Opinion proposing that the European Court of Justice (ECJ) dismiss HSBC’s appeal. Although the AG criticised the General Court’s analysis of the procedural aspects and its understanding of the ‘by object’ case law, he found that, were the grounds of the General Court’s judgment to be substituted, the operative part of the judgment could be considered well founded based on the adjusted legal grounds. Therefore, the General Court’s errors have not affected the outcome of the proceedings against HSBC.

Read more

05.04.2022 NL law
Game on for gatekeepers: Digital Markets Act finalised

Short Reads - Now that political agreement has been reached on the final text, the Digital Markets Act (DMA) will enter into force soon. The DMA’s ex ante rules and obligations will apply next to the ad hoc EU and national competition rules. Time for big digital companies to take stock of the potential implications of these additional rules on their day-to-day business operations. See our infographic for a concise overview of the DMA.

Read more