Short Reads

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

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

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

03.10.2019 NL law

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.

Even though the ACM is no stranger to paying up, with a record payment of EUR 4.5 million for a wrongfully blocked bakery merger in 2017, having to only pay moral damages seems exceptional. It is, however, another factor companies and individuals can take into account when considering their actions if faced with an annulled ACM decision.

The ACM's causality defence

The ACM had argued that all claims should be dismissed because, despite the CBb's annulment of its fining decisions in 2017, the ACM could legitimately have adopted valid infringement decisions which would then, ex hypothesi, have caused the same alleged damage. As a result, there was no causal link between the annulled decisions and the alleged damage. The CBb ruled, however, that ACM had not furnished sufficient evidence to support its statement that it could legitimately have adopted a fining decision vis-à-vis the traders.

 The traders' claims for lost profits

The traders argued they should be compensated for lost profits. The infringement decisions against them – which were eventually ruled to be unlawful – had made it more difficult and costly for them to attract funding. This was mainly caused by their bank revoking its loan facility when it discovered they were under investigation by the ACM. As a result, the traders were no longer able to carry out their business. However, the CBb made short shrift of this argument, ruling that the bank's decision could not be attributed to the ACM, as the bank's reason for revoking the loan facility was not dependent on the validity of the annulled infringement decision. 

The trader's claim for moral damages

The traders also argued that the press coverage of their cases – which was allegedly partly instigated by the ACM – had damaged their reputation. The CBb agreed. It ruled that the mere fact that the infringement decision was annulled was, given the circumstances of the case and the length of the proceedings, an insufficient remedy. It therefore ordered the ACM to pay each trader EUR 40,000 in moral damages. The traders' argument that the investigation had also harmed their health was dismissed for lack of evidence.

The judgment shows that companies or individuals who have been confronted with an unlawful fine may have a claim for moral damages. However, a decisive factor in this case may have been that the investigated traders carried out their businesses in a personal capacity. Large companies may have a harder time substantiating a claim for moral damages in similar circumstances. Even so, it is another factor to reckon with if faced with an annulled ACM decision.

This article was published in the Competition Newsletter of October 2019. Other articles in this newsletter:

 

Team

Related news

12.05.2020 NL law
Kroniek van het mededingingsrecht

Articles - Wat de gevolgen van de coronacrisis zullen zijn voor de samenleving, de economie en – laat staan – het mededingingsbeleid laat zich op het moment van de totstandkoming van deze kroniek niet voorspellen. Wel stond al vast dat het mededingingsrecht zal worden herijkt op basis van de fundamentele uitdagingen die voortvloeien uit zich ontwikkelende ideeën over het belang van industriepolitiek, klimaatverandering en de positie van tech-ondernemingen en de platforms die zij exploiteren.

Read more

07.05.2020 NL law
Spreading fast: Dutch and Belgian COVID-19 State-aid approved

Short Reads - Many Member States are taking measures to support the economy during the COVID-19 crisis. The European Commission’s Temporary Framework enables the rapid approval of certain types of State aid. So far, three Dutch State aid schemes and six Belgian schemes were approved, providing the beneficiaries with legal certainty that the aid received is in line with EU State aid law and cannot be challenged at a later stage.

Read more

07.05.2020 NL law
ECJ confirms: no shortcut for ‘by object’ antitrust infringements

Short Reads - The European Court of Justice has found there is no shortcut for determining whether particular conduct can be held to have the object to restrict competition. A competition authority will always need to assess carefully whether the conduct reveals "a sufficient degree of harm to competition” before labelling it a ‘by object’ infringement. This is the case where there is sufficiently solid and reliable experience showing that this type of conduct is commonly regarded as being inherently anticompetitive.

Read more

28.04.2020 EU law
Origin of the primary ingredient - Implementing Regulation 2018/775

Short Reads - Since the beginning of this month, the origin of the primary ingredient of a food must be clearly indicated on the product when it differs from the origin given for the product as a whole. This is the result of the implementation of Article 26 (3) of the European Regulation 1169/2011 on the provision of food information to consumers.  

Read more

07.05.2020 NL law
COVID-19: fast-forwarding competition law

Short Reads - Competition authorities are temporarily ‘green-lighting’ certain collaboration initiatives to safeguard the supply of essential products in light of the COVID-19 outbreak. At the same time, authorities warn against using the current exceptional circumstances to engage in anti-competitive practices, such as price-fixing, excessive pricing, refusals to deal or opportunistic takeovers. 

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring