Short Reads

District Court of Rotterdam upheld ACM's decision to clear lottery merger

District Court of Rotterdam upheld ACM's decision to clear lottery mer

District Court of Rotterdam upheld ACM's decision to clear lottery merger

01.08.2017 NL law

On 27 July 2017, the District Court of Rotterdam dismissed the appeal brought by Lottovate Nederland B.V. and Stichting Speel Verantwoord against the Dutch Authority for Consumers and Markets' (ACM) clearance decision in the lottery merger. The District Court confirmed that by resorting to a regression analysis the ACM had used an academically sound method to assess the nature and degree of competition between the merging parties. Using this method, the ACM correctly concluded that competition between the merging parties was very limited.

In December 2015, after a Phase II investigation, the ACM cleared the merger between Stichting Exploitatie Nederlandse Staatsloterij (SENS) and Stichting Nationale Sporttotalisator (SNS) [see our January 2016 Newsletter]. According to the ACM, competition between the merging parties was very limited and customers would not easily switch from one party to the other when (sales) conditions changed. This is mainly a result of strict regulation, which required companies in each market segment to apply for a specific licence. As a consequence, every license-holder on the market operates within its own market segment (with its own range of games and target audience) and there are limited incentives to compete with other segments. For these reasons, the ACM concluded that the merger would not significantly impede effective competition on both the lotteries and lottos market, and the potential online market.

Lottovate and Stichting Speel Verantwoord appealed the ACM decision by arguing, among other things, that the ACM (i) erroneously left open the precise market definition and (ii) did not appropriately examine the effects of the merger on the markets for lotteries and lottos.

On the first point, the District Court reiterated that defining the relevant market is a starting point and tool for analysing market power, but it is not a goal in itself. It is established practice for both the ACM and the European Commission to leave open the exact market definition if the concentration does not raise competition concerns under any plausible market delineation. The District Court concluded that the ACM had sufficiently substantiated why the precise market definition could be left open in the case at hand.

On the second point, the District Court found that the ACM had appropriately analysed the market data and concluded on solid grounds that competition between the notifying parties was very limited. The Court found that the appellants arguments against the scope of the ACM's study were unfounded and effectively rebutted by the ACM. The District Court more generally considered the method used by the ACM ('regression analysis') as valuable and academically sound. The accuracy of that method had also been confirmed by an independent economic expert. Furthermore, the ACM sufficiently explained why it chose not to take into account the results of a study into consumer preferences.

Overall, the District Court concluded that the ACM's clearance decision should be upheld.

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

1. Court of Justice dismisses Toshiba's appeal against the gas-insulated switchgear fine
2. Recent enforcement action demonstrates an increasing focus on compliance with procedural EU merger rules
3. Trade and Industry Appeals annuls fine imposed on real estate traders
4. ACM closes probe into Fox over live-soccer TV rights due to lack of evidence of consumer harm
5. District Court of The Hague rules on ACM's powers to select and inspect digital data

Team

Related news

07.02.2019 NL law
The ACM follows EU approach in its first pharmaceutical merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently reviewed its first merger between two pharmaceutical companies. In its conditional clearance of Aurobindo's acquisition of certain European Apotex assets, the ACM followed the European Commission's approach in assessing the merger's impact on competition. Companies will welcome the news that pharma mergers will be reviewed in a similar fashion, irrespective of whether the ACM or the European Commission conducts the review.

Read more

07.02.2019 EU law
Digitisation and competition law: past, present and future

Short Reads - It is nearly time for the European Commission to reveal its course of action in digitisation and competition law. Feedback from a public consultation and the recent conference on 'Shaping competition policy in the era of digitisation' together with the upcoming expert panel's report on the future challenges of digitisation for competition policy are likely to shape the Commission's course of action.

Read more

07.02.2019 NL law
Follow-on cartel damages claim dismissed: don't bury courts under paper work

Short Reads - A recent ruling by the Dutch Court of Appeal confirmed that claimants will need to sufficiently substantiate their claim that they suffered loss due to a cartel, even in follow-on cases. Despite a presumption that sales or service contracts concluded during the cartel period have been affected by the cartel, claimants will still need to provide the courts with concrete, detailed and uncluttered information showing (i) which party purchased (ii) which products from (iii) which manufacturer for (iv) which amount, preferably with copies of the relevant agreements.

Read more

07.02.2019 NL law
The need for speed in mergers is no reason to ignore rights of defence

Short Reads - On 16 January 2019, the European Court of Justice clarified the procedural guarantees the European Commission needs to provide to merging parties during merger reviews. According to the Court of Justice, the General Court (GC) had rightly annulled the Commission's decision to prohibit the merger of UPS and TNT. UPS's right of defence had been infringed because the Commission had failed to share the final version of the econometric model with UPS before adopting its prohibition decision.

Read more

28.01.2019 LU law
The Grand Duchy of Luxembourg implements the Register of Beneficial Owners Law

Articles - The Grand Duchy of Luxembourg has fulfilled its European obligations in the fight against money laundering and the financing of terrorism by transposing Directive 2015/849 of 20 May 2015 (also known as the 4th EU AML Directive) into national law with the brand new Law of 13 January 2019 (the RBE Law). Below is an overview of the important disclosure obligations that will soon apply to a wide range of Luxembourg entities.

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