Short Reads

Hague Court of Appeal rules on interpretation of object infringements

Hague Court of Appeal rules on interpretation of object infringements

Hague Court of Appeal rules on interpretation of object infringements

01.05.2017 NL law

On 4 April 2017, the Hague Court of Appeal ruled that supermarket and food service trade association CBL (Centraal Bureau Levensmiddelhandel) and its member Jumbo had not infringed article 6 of the Dutch Competition Act (Mw) when setting minimum standards for preventing the sale of alcohol and tobacco to underage customers. The ruling overturns the earlier judgment of the District Court of the Hague finding an infringement of the Dutch cartel prohibition.

In the Netherlands, it is prohibited to sell alcohol and tobacco to underage customers. To prevent such sales, Hollandsche Exploitatiemaatschappij (HEM) developed a system to verify the age of a customer by taking a picture at the cash register and having it evaluated off-site. Separately, CBL, with 95% of all supermarkets as its members, launched a Campaign in 2009 and drafted a Code of Conduct in 2012 that focused on age verification by the cashier. With the Campaign and Code CBL in effect introduced a minimum standard for CBL's members.

HEM initiated proceedings against CBL and Jumbo, alleging a cartel infringement resulting in the exclusion of HEM's system from the market. The District Court considered that the Campaign and Code amounted to an object infringement. It reached this conclusion by observing HEM's system was excluded from the market. The Court of Appeal overturned the ruling of the District Court. Referencing Cartes Bancaires, the Court observed that the concept of 'object infringement' should be interpreted restrictively. In this case, the Court of Appeal considered that there was no object infringement. CBL Members were free to use additional verification measures. For example, one supermarket experimented with the HEM system while adhering to the Campaign, showing that the Campaign and Code did not exclude the use of the system. The Court also found it relevant that CBL's members had considered the system but decided against it for reasons relating to the system itself.

Decisions of trade associations and the concept of object infringements have come up a few times recently (e.g. Alpe d'huZes and De Geborgde Dierenarts). The District Court's ruling in this case was met with questions from practitioners that observed the limited substantiation for the finding of an object infringement. Additional questions were raised about the compatibility of the District Court's ruling with Cartes Bancaires. The judgment of the Hague Court of Appeal has now reconfirmed the restrictive interpretation of object infringements. HEM has indicated it will appeal the rulings before the Supreme Court.

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

  1. Court of Justice allows use of evidence received from national tax authorities
  2. Court of Justice clarifies parental liability rules in the context of prescription
  3. European Commission publishes report on effectiveness of enforcement in online hotel booking sector
  4. Dusseldorf Court confirms that Asics' online sales restrictions violate competition law
  5. Commercial Court of Ghent grants compensation to parallel importers for competition law infringement by Honda

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