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

07.11.2019 NL law
Safeguarding legal privilege: better safe than sorry?

Short Reads - The European Court of Justice recently ruled that the European Commission does not have to take additional precautionary measures to respect the right of legal professional privilege when conducting a new dawn raid at the same company. Companies are well-advised to mark clearly all communications covered by legal privilege as 'privileged and confidential' and to keep all privileged communication separate from other communication.

Read more

12.11.2019 EU law
Third country bids in EU procurement: always excluded?

Articles - The European Commission recently issued guidance on the participation of third country bidders in public procurement. It clarified bids may be excluded, but remains silent on whether they may be accepted and under which conditions. The Commission is of the opinion that contracting authorities or entities can exclude bids if no access is secured. However, it does not discuss if and under which conditions contracting authorities or entities can allow foreign bids if no access is secured.

Read more

07.11.2019 NL law
Tackling Big Tech up-front? Time to stop thinking and start acting

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring