Short Reads

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

ACM fines Dutch rail operator (NS) for an alleged abuse of dominance

03.07.2017 NL law

On 29 June 2017, the Authority for Consumers and Markets (ACM) published the non-confidential version of a decision imposing a fine of EUR 40.95 million on Dutch railway operator NS for an alleged abuse of dominance. The ACM closed its investigation into NS' former CEO and CFO, finding insufficient grounds to hold them personally liable for the alleged infringements (decision I, decision II).

The ACM found that NS abused its dominant position on the 'main railway network' in the Netherlands by committing two separate infringements in relation to a public transportation tender in Limburg in 2014. The winning bidder gained the right to provide all bus and train transportation services in Limburg for a period of 15 years.

The first infringement concerns a predatory pricing allegation. According to the ACM, NS' subsidiary Abellio submitted a "lossmaking bid" in the Limburg tender procedure. The ACM concluded that NS' expected costs (including the cost of capital) would exceed its expected revenue. As a result, the ACM found that its competitors "could not match or surpass NS’ bid without suffering losses themselves".

The second alleged infringement concerns a combination of various forms of conduct. The ACM found that NS (i) received confidential information from a former director of one of its competitors, (ii) delayed its response and provided incomplete information to its competitors when requesting access to NS' facilities in Limburg (e.g. at train stations), and (iii) passed on confidential information it received from competitors to its own subsidiary Abellio. The ACM concluded that these various forms of conduct, taken together, constituted an abuse.

According to the ACM, both infringements were aimed at preventing NS' competitors from "proving themselves in Limburg". According to the ACM, if a competitor had won the tender, this may have led to further decentralization of the main railway network, in which NS holds a dominant position.

NS – and its shareholder the Dutch Ministry of Finance – announced that it will appeal the decision.

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

  1. Google gets a record EUR 2.42 billion antitrust fine for its shopping service
  2. Recent European Commission merger decisions signal an increased focus on innovation
  3. New Belgian Act on damage claims for competition law infringements

Team

Related news

18.02.2019 BE law
Plan-MER voor Vlaams windturbinekader? Raad voor Vergunningsbetwistingen te rade bij Europa

Articles - Het wordt stilaan een traditie van de Belgische rechter om het Hof van Justitie te bevragen over de milieueffectenbeoordeling en -rapportage (MER). Na de Raad van State en het Grondwettelijk Hof is het de beurt aan de Raad voor Vergunningsbetwistingen. In een tussenarrest van 4 december 2018 heeft de Raad voor Vergunningsbetwistingen aan het Hof van Justitie een lijst met prejudiciële vragen gesteld over de plan-MER-plicht van het Vlaamse kader voor de uitbating van windturbines. Mogen we ons verwachten aan een juridische saga "d'Oultremont pt.II"?

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

18.02.2019 NL law
Brexit and data protection: preparing for a 'no-deal'

Short Reads - As it stands, the UK will exit the European Union at midnight on 29 March 2019. Therefore, businesses within the UK, or with trade relations with the UK, would be best advised to assume that a no-deal Brexit is inevitable. The exchange of personal data  within the EU is governed by the General Data Protection Regulation (GDPR). In a no-deal Brexit, the GDPR will cease to be applicable in the UK upon its EU exit.

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

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

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