District Court of Rotterdam confirms that investment firms may be held liable for conduct of portfolio companies

01.02.2017 NL law

On 30 January 2017, the District Court of Rotterdam upheld the ACM's decision to impose a fine on investment firm Bencis for an infringement committed by its portfolio company Meneba. In 2014, the ACM imposed fines on three investment firms for the involvement of one of their (former) portfolio companies in an alleged cartel on the Dutch flour market, including Bencis that received a fine of EUR 1,3 million [see our January 2015 Newsletter]. Only Bencis appealed the ACM's decision.

The Court agreed with the ACM that the conduct of Meneba could be attributed to its controlling shareholders on the basis of the parental liability doctrine. Under this doctrine, shareholders can be held liable if they can exercise decisive influence over their shareholdings and de facto do exercise this influence or are assumed to have done so during the period of an infringement. The Court confirmed that the relevant question is whether the portfolio companies acted independently or whether the investment firm exercised decisive influence. In this case, the Court agreed with the ACM's decision that Bencis exercised decisive influence over Meneba on the basis of the economic, organizational and legal links.

The judgment confirms that investment firms may be held liable for conduct of their portfolio companies, even in the absence of knowledge that these entities acted in an anti-competitive manner. Earlier in 2014, the European Commission fined Goldman Sachs EUR 37.3 million for the alleged involvement of one of its portfolio companies in an infringement on the market for high voltage cables. Former Commissioner Almunia stated at the time that investment companies have the same responsibility for compliance with competition rules as corporates and that they should take a careful look at the compliance culture of the companies they invest in. The District Court of Rotterdam has now confirmed that this approach also applies in Dutch competition law.

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

1. Court of Justice confirms Commission's approach in its first hybrid settlement case
2. Court of Justice clarifies rules on evidence in bathroom fittings cartel judgments
3. Court of Justice confirms the fine imposed on Toshiba and Panasonic in the cathode ray tubes cartel
4. General Court awards damages for failure to adjudicate within a reasonable time

Team

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