Short Reads

Rotterdam District Court quashes cartel fines imposed by the ACM on cold storage operators

Rotterdam District Court quashes cartel fines imposed by the ACM on c

Rotterdam District Court quashes cartel fines imposed by the ACM on cold storage operators

01.05.2018 NL law

On 12 April 2018, the District Court of Rotterdam quashed four fines imposed by the Dutch Authority for Consumers and Markets (ACM) on cold storage operators and their respective directors for violating the cartel prohibition. The fines have been annulled as a result of numerous deficiencies in the ACM's investigation and reasoning.   

On 22 December 2015, the ACM established three separate infringements in the sector for cold storage services and fined four Dutch cold storage operators and five individuals, in their capacity as 'de facto leaders', EUR 12.5 million in total. The ACM found that the operators had been engaged in talks on a potential merger between 2006 and 2009. In that context, the operators had exchanged sensitive information in relation to their capacity, tariffs and customer orders. The ACM considered that these contacts constituted a single and continuous infringement of the cartel prohibition.

However, some of these operators and individuals have been successful in their appeals against fines imposed by the ACM. In two cases (judgments 1 and 2), the District Court sided with the appellants who argued that the ACM was time-barred from pursuing a case against them as it had not suspended the five year prescription period by undertaking any investigatory actions since the infringement had ended. The District Court acknowledged that the ACM had investigated certain activities in the cold storage sector (i.e. those related to cold storage of fruit juices and concentrates), but not the activities for which the relevant appellants were charged (i.e. cold storage of fish). Therefore, it could not be argued that the former investigatory actions suspended the prescription period in the investigation with regard to the latter activities. 

The District Court also found (judgment 3) that the ACM had not adequately investigated the appreciability of the alleged restriction of competition in another judgment. In that context, it observed that the ACM had ignored indications in the file that pointed towards a broader relevant geographic market. If such broader market were found to exist, the appreciability criterion may not have been found to be fulfilled. On that basis the Court quashed the relevant fine.

Finally, the District Court addressed (judgment 4) an argument related to the single and continuous infringement raised by some of the appellants. It found that the ACM had unwarrantedly considered numerous exchanges between the parties to be part of an overall plan to restrict competition. The District Court observed that various exchanges, upon closer review, could have been part of legitimate talks to explore a transaction. However, the ACM had indiscriminately qualified all of those instances of conduct as part of the alleged single and continuous infringement. In doing so, the ACM infringed its obligation to duly motivate its decision. The District Court quashed the relevant decisions on this basis.

These judgments follow the annulment of the ACM fines imposed on real estate traders active on the market for the sale of houses under execution [see our August 2017 Newsletter].

This article was published in the Competition Law Newsletter of May 2018. Other articles in this newsletter:

  1. European Court of Justice provides guidance on assessing discriminatory pricing
  2. Germany did not err in extraditing an Italian citizen to the US for a competition law infringement
  3. European Commission imposes record fine on Altice for premature implementation of PT Portugal acquisition
  4. European Commission proposes draft Regulation on online platforms and search engines
  5. District Court of Amsterdam rules on requests for pre-procedural hearings

Team

Related news

03.10.2019 NL law
It's in the details: HSBC fine quashed for insufficient reasoning

Short Reads - The General Court annulled the EUR 33.6 million fine imposed on banking group HSBC for its participation in the euro interest rates derivatives cartel. Full annulment was granted based on the Commission's failure to provide sufficiently detailed reasoning for the first step of the fine calculation, establishing the value of sales. As the value of sales could not be established in a straightforward way, the Commission used a proxy. When doing so, the Commission needs to properly explain its reasoning to allow the companies fined to understand how it arrived at the proxy. 

Read more

03.10.2019 NL law
The postman will no longer ring twice: Minister unblocks postal merger

Short Reads - The Dutch Authority for Consumers and Markets (ACM) recently blocked postal operator PostNL's acquisition of its only national competitor, Sandd, because this would create "a monopolist on the postal delivery market". However, the Dutch Minister of Economic Affairs and Climate Policy has overruled the ACM's decision on grounds of public interest. Invoking industrial policy or public interest reasons for merger clearance seems to be catching on.

Read more

03.10.2019 NL law
The ACM has to pay: moral damages awarded to real estate traders

Short Reads - The Dutch Authority for Consumers and Markets (ACM) needs to cough up a total of EUR 120,000 in moral damages to three real estate traders. The Dutch Trade and Industry Appeal Tribunal (CBb) agreed with the real estate traders that the annulment of the ACM's cartel decisions against them was insufficient compensation for the harm they suffered as a result of the length of the procedure and the press coverage of their cases.

Read more

02.10.2019 NL law
Politie aansprakelijk voor schietpartij Alphen aan den Rijn

Short Reads - De politie is aansprakelijk voor de schietpartij in een winkelcentrum Alphen aan den Rijn in 2011. Dat oordeelt de Hoge Raad in zijn arrest van 20 september 2019 (ECLI:NL:HR:2019:1409). Bij deze schietpartij vonden zes mensen de dood en raakten zestien mensen gewond. De dader doodde ook zichzelf. Nabestaanden van dodelijke slachtoffers, slachtoffers die gewond raakten en winkeliers spreken de politie aan tot schadevergoeding. Zij voeren aan dat de politie de vergunning voor de wapens die de man gebruikte, niet had mogen verlenen.

Read more

03.10.2019 NL law
Margrethe Vestager to play matchmaker between enforcement and regulation

Short Reads - Current Competition Commissioner Margrethe Vestager may face even greater challenges in the next European Commission. President-elect Ursula von der Leyen has not only nominated Vestager for a second term as Commissioner for Competition, but has also asked her to coordinate the European Commission's digital agenda. As a result, Vestager may soon be tackling digital issues through competition enforcement whilst also proposing additional regulation to deal with these (and related) issues pre-emptively.

Read more

02.10.2019 NL law
Dutch national police service liable for unlawful granting of firearms permit

Short Reads - In a recent decision (ECLI:NL:HR:2019:1409), the Supreme Court has decided that the Dutch national police force is liable for damage suffered by victims of a shooting which took place in a shopping centre in 2011; an event that shocked the Netherlands. The Supreme Court held that the police had unlawfully granted a permit for the firearms used in the shooting.

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