On 13 October 2016, the District Court of Rotterdam ("Court") delivered its judgments in the Rotterdam Taxi Operators Case.
In its rulings the Court annulled the decisions of the Netherlands Authority for Consumers and Markets ("ACM"), which imposed fines on two Rotterdam taxi firms (decision 1 and 2) and on four of the executives working for the taxi firms (decision 3, 4, 5 and 6) for violating the Dutch cartel prohibition.
Specifically, the Court found that the ACM had failed to adequately determine the relevant geographic market. As a result, the Court was unable to determine whether or not the cartel would fall within the scope of the Dutch de minimis provision ex Article 7 Dutch Competition Act.
In its decision, dated 20 November 2012, the ACM decided that the taxi operators engaged in bid-rigging arrangements involving contractual taxi transport services in the greater Rotterdam area. The ACM limited the relevant geographic market to the Rotterdam Region. Consequently, the market shares of the parties involved were higher. For that reason, the cartel fell outside of the scope of the de minimis provision.
The taxi operators appealed the decision arguing, among other things, that the ACM insufficiently substantiated its position that the geographic market should be limited to the Rotterdam region. The taxi operators pointed out that in a previous merger notification assessment the ACM had ruled that the market for contracted taxi services should likely be delineated at the national level and that the ACM had failed to investigate whether or not the market should be broader than the Rotterdam region.
The Court agreed with the taxi operators, stating that there was no evidence of the ACM conducting a thorough investigation with regard to the geographic market and therefore it could not rule out that the market was indeed a national market. As a result, the Court concluded that it was impossible to determine whether the conduct of the parties significantly restricted competition and whether the parties could invoke the de minimis provision. The ACM was not offered an opportunity to remedy the defects, because the Court stated that too much time had passed and a new assessment would be required. Therefore, the Court repealed the decision of the ACM and annulled the fines.
The key takeaway of these judgments is that, according to the Court, also in cartel cases the ACM will have to sufficiently examine what the relevant market is, before it can conclude whether or not competition was appreciably restricted.
This article was published in the Competition Law Newsletter of November 2016. Other articles in this newsletter:
- District Court of The Hague deals with claim reduction by claimant and rules that claimant is responsible for preserving documents
- Dutch Ministry issues Guidelines on Corporate Sustainability Initiatives and Competition Law