On 23 March 2016, the Netherlands Authority for Consumers and Markets ("ACM") released public versions of decisions adopted in 2015 in which it fined four cold-storage companies a total of EUR 12.5 million for breaching the cartel prohibition. The ACM also imposed fines on five executives, the highest of which amounted to EUR 144,000.
According to the ACM's decisions and press release, the companies engaged in merger talks between 2006 and 2009, during which they allegedly: (i) exchanged competitively sensitive information on refrigerated food storage prices and capacity utilizations rates, (ii) agreed to allocate customers and pass on price increases, and (iii) rigged bids submitted to potential customers.
In 2012, the ACM conducted dawn raids at various premises of the companies involved following information received from an informant. The companies all operated refrigerated/frozen warehousing facilities used to store goods, particularly concentrated juices and fish. The ACM's investigation concluded that during the (failed) merger negotiations, which took place over three years, the companies breached the competition rules by sharing competitively sensitive information and by committing other far-reaching "by object" infringements (e.g. sharing future capacity and highly sensitive client-specific information).
One of the undertakings, Kloosbeheer B.V., failed to receive leniency in one of the ACM decisions because the ACM considered that it could not (and did not) provide information with sufficiently "significant added value" within the meaning of the ACM leniency guidelines. Kloosbeheer, however, did receive a 10% reduction of the fine imposed for the "mitigating factor" of going well beyond its legal obligation to cooperate with the investigation. Interestingly, in another decision concerning Kloosbeheer, it was granted the benefit of a "simplified procedure" – usually reserved for settlement decisions – by agreeing to the ACM's description (and legal qualification) of the facts, the fines imposed, and liability of its directors. In this case, the ACM has taken a novel approach by adopting different types of decisions aimed at a specific undertaking in a single cartel investigation.
This case also highlights the importance of ensuring adequate safeguards are defined and put in place before engaging in merger negotiations (e.g. setting up "clean teams" during pre-merger due diligence). Any exchange of commercially sensitive information – regardless of the context in which it takes place – remains liable to violate competition law.
This article was published in the Competition Law Newsletter of April 2016. Other articles in this newsletter:
1. Court of Justice annulled Commission's requests for information in cement cartel case
2. Initial findings of Commission's e-commerce sector inquiry show widespread use of geo-blocking
3. Dutch Trade and Industry Appeals Tribunal confirmed that ACM can use EU-wide turnover in calculating the fines in onion cartel case
4. New Leniency Guidelines applicable in Belgium since 22 March 2016
5. Belgian Constitutional Court rules that actions for antitrust damages cannot be time-barred before the final infringement decision is rendered