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

01.08.2019 NL law
General court dismisses all five appeals in the optical disk drives cartel

Short Reads - The General Court recently upheld a Commission decision finding that suppliers of optical disk drives colluded in bids for sales to Dell and HP by engaging in a network of parallel bilateral contacts over a multi-year period. The General Court rejected applicants' arguments regarding the Commission's fining methodology, including that the Commission ought to have provided reasons for not departing from the general methodology set out in its 2006 Guidelines.

Read more

14.08.2019 BE law
Verklaring van openbaar nut is geen "project" in de zin van de MER-regelgeving

Articles - In een recent arrest bevestigt de Raad van State dat "verklaringen van openbaar nut", bedoeld in artikel 10 van de wet van 12 april 1965 betreffende het vervoer van gasachtige produkten en andere door middel van leidingen niet onder het begrip "project" uit de project-MER-regelgeving valt. Of hetzelfde geldt voor elk type gelijkaardige administratieve toelating, is daarmee evenwel nog niet gezegd. Niettemin geeft de Raad met zijn arrest een belangrijk signaal dat niet elke mogelijke toelating onder de project-MER-regelgeving valt.

Read more

01.08.2019 NL law
Brand owners beware: Commission tough on cross-border sales restrictions

Short Reads - The European Commission recently imposed a EUR 6.2 million fine on Hello Kitty owner Sanrio for preventing its licensees from selling licensed merchandising products across the entire EEA. Sanrio is the second licensor (after Nike) to be fined for imposing territorial sales restrictions on its non-exclusive licensees for licensed merchandise. A third investigation into allegedly similar practices by Universal Studios is ongoing. The case confirms the Commission's determination to tackle these practices, regardless of type or form.

Read more

08.08.2019 BE law
Regulating online platforms: piece of the puzzle

Articles - The new Regulation no. 2019/1150 of the European Parliament and of the Council of 20 June 2019 on promoting fairness and transparency for business users of online intermediation services, applicable as of 12 July 2020, is another piece of the puzzle regulating online platforms, this time focussing on the supply side of the platforms.

Read more

01.08.2019 NL law
Call of duty: Commission must state reasons when straying from its guidelines

Short Reads - The European Commission has lost a second battle concerning its EUR 15 million fine imposed upon interdealer broker ICAP, this time before the European Court of Justice. The Court upheld the previous judgment of the General Court on the basis of the Commission's failure to state reasons concerning its fining methodology of cartel facilitator ICAP. This may lead to more reasoned Commission decisions in the future - deterrence of cartel behaviour does not justify keeping the methodology for setting the fines as a 'black box'.

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