Short Reads

Access to the file in Dutch competition procedures: too little too late?

Access to the file in Dutch competition procedures

Access to the file in Dutch competition procedures: too little too late?

09.01.2020 NL law

Companies beware: the ACM’s and European Commission’s approach to access to the file are not aligned. According to an interim relief judge, the ACM cannot be forced to grant a company access to a broader set of documents in competition procedures. A potential error in the administrative procedure can be remedied before a court at a later stage. This is different to the right to access to the Commission’s file during administrative procedures, as acknowledged in EU case law.

 

In summary proceedings, a company claimed fuller access to the ACM file than the subset it was originally granted access to. The civil interim relief judge ruled that Dutch administrative law does not provide for a legally enforceable obligation on the ACM to grant access to its entire file. According to the judge, there was no need to interfere because any violation of the principle of equality of arms can be remedied before the administrative appeals court at a later stage.

Discussion concerning the scope of the file to which the ACM grants access to companies under investigation is an ongoing phenomenon in the Netherlands. Generally, the ACM only provides access to a small subset of the entire set of documents it had access to in competition investigations.

Access to the file of competition authorities is a procedural step to protect companies’ rights of defence in sanction proceedings (principally under Article 6 ECHR) and to apply the principle of equality of arms. It provides companies the opportunity to examine evidence in the authority’s file and make known their views on the truth and relevance of the facts relied on by the authority and on the allegations made against them.

The right to access all documents that may be relevant to the defence during the administrative proceedings has long been acknowledged by EU courts. According to EU courts, an infringement of the right of access to the Commission’s file during the administrative procedure cannot be remedied by obtaining such access during the judicial proceedings. Such belated access to the file would not return a company to the situation in which it would have been if it had been able to rely on those documents during the administrative procedure. It is for this reason that the Commission, for example, grants companies access to its entire file.

However, this EU case law did not motivate the civil judge to interfere with the Dutch legal system and introduce an obligation for the ACM to grant access to a broader set of documents than the limited selection the ACM granted access to. Different to the EU case law, the judge ruled that any flaws which occurred at earlier stages in the procedure (such as a mistaken refusal to grant access to documents) can be remedied before a court at a later stage. The judge therefore dismissed the claim.

Even if this possibility of delayed access may seem too little too late, companies should take note of this current difference in approach between the Commission’s and the ACM’s competition procedures.

 

This article was published in the Competition Newsletter of January 2020. 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