CBb confirms: no cartel fine, still interest to appeal cartel decision

NL Law
EU Law

Companies can challenge a decision establishing that they committed a competition law violation, even if no fine was imposed on them. The CBb – the highest court for public enforcement of cartel cases – recently confirmed that the absence of a fine does not affect a company’s interest to appeal. Consequently, parent companies held liable for a subsidiary’s cartel infringement can still challenge a cartel decision, irrespective of whether fines were imposed on them separately.

Similarly, whistleblowers may appeal cartel decisions, even if they were granted immunity from fines in return for blowing the whistle. Irrespective of a fortuitous outcome of the administrative procedure, companies should therefore maintain a view of the bigger picture when deciding whether to appeal.

According to Dutch law, appellants must have a legitimate interest in bringing a procedure in order to be admissible in court. The case at hand confirms that such a legitimate interest also exists if the Authority for Consumers and Markets (ACM) does not impose a fine (or imposes a zero euro fine), but does hold the company liable for a cartel infringement.

In 2017, the ACM imposed fines on three companies and two de facto managers for a price fixing agreement. During the objection procedure, a parent company’s fine was withdrawn due to inability to pay, but its liability for the cartel infringement remained intact.

On appeal, the parent company argued that – despite the fortuitous outcome of no fine – it still had an interest in bringing proceedings against the cartel decision. The Rotterdam District Court found that there was no such interest, given the lack of negative legal consequences for the parent company. However, on further appeal, the CBb agreed with the parent company’s arguments that it did have an interest, particularly because of the potential consequences of the decision holding it liable for the cartel infringement, such as exclusion from future tenders, follow-on damages claims, and a fine increase in case of recidivism. In line with its earlier ruling relating to a zero euro fine for a whistleblower (see here and here), the CBb therefore ruled that the parent company can bring an action against a decision establishing that it has committed a competition law violation, even if no fine is imposed.

The case has now been referred back to the District Court. In addition, the publication of the ACM decision has been suspended until six weeks after the new ruling of the District Court (see here).

This article was published in the Competition Newsletter of March 2020. Other articles in this newsletter: