Last Updated June 13, 2019

Law and Practice

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Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

The ACM is entitled to interview company employees for the purposes of ongoing investigations and will do so in practice. This can be accomplished in informal settings, as part of hearings and in the context of dawn raids. Employees are allowed to be accompanied by counsel and are obliged to co-operate, but will have the right to remain silent if they are an employee of a company that is the target of an investigation.

The ACM can seek documentary information directly from the undertaking under investigation, either by sending it a request for information or in the context of dawn raids.

The ACM has jurisdiction over practices that affect the market in the Netherlands, irrespective of where the companies involved are located. Therefore, the ACM has the power to request the provision of information of companies located outside the Netherlands. The General Administrative Law Act does not limit these powers to companies located in the Netherlands. Where needed, the ACM may request the assistance of other competition authorities.

First of all, the Competition Department of the ACM works together with other Departments, such as the Consumer, Energy, or Telecommunications, Transport and Postal Services Department.

Furthermore, the ACM engages in close co-operation with other market authorities, like the Dutch Authority for the Financial Markets, the Dutch Data Protection Authority, the Netherlands Gambling Authority, the Dutch Central Bank, the Dutch Healthcare Authority and the Dutch Media Authority, within the so-called Consultation Forum of Regulatory Bodies.

The ACM has concluded publicly available collaboration agreements with each of these authorities or agencies, and with numerous other bodies. These agreements generally contain clauses that authorise the mutual exchange of case-appropriate information, insofar as the exchange is necessary for the proper fulfilment of the authority’s tasks.

Another body with which the ACM concluded an agreement is the public prosecution (Openbaar Ministerie). Article 9 of the Collaboration Protocol between ACM, the Public Prosecution and the Dutch Tax and Customs Administration enables the exchange of information. Article 39f(1)(c)-(d) of the Dutch Data from Judicial and Criminal Proceedings Act authorises the public prosecution to supply the ACM with “personal data from criminal proceedings.” Hence, evidence that has been appropriated by the public prosecution and electronically stored, such as information gathered through legitimate phone taps, can be exchanged with the ACM to be used in a formal competition law investigation. Either the ACM can request this information or the public prosecution can do so ex officio.

The ACM participates in the ECN, in the European Competition Authorities (ECA, a collaboration between national competition authorities in the European Economic Area) and in the International Competition Network (ICN). The co-operation occurs through:

  • informing each other of new cases and envisaged enforcement decisions;
  • co-ordinating investigations, where necessary;
  • helping each other with investigations;
  • exchanging evidence and other information; and
  • discussing various issues of common interest.

It is not uncommon for the ACM to co-operate with enforcement agencies in foreign jurisdictions. In recent years the ACM has, for instance, collaborated with the German Bundeskartellamt concerning a cartel of manufacturers of prefabricated concrete garages and in the harbour towage sector, and with the Belgian competition authority in a cartel in the flour industry.

Under Dutch law, criminal enforcement of violations of the Act is not possible.

As the Dutch competition law system does not contemplate civil enforcement by the competition authority, this does not apply to Dutch law.

In general, the ACM brings enforcement proceedings against all parties involved in a cartel in a single proceeding and imposes fines in one single decision. There may, however, be reasons to issue separate decisions, for instance if some of the parties involved agree on a simplified procedure and others do not.

The burden of proving that the cartel prohibition has been infringed lies with the ACM. The court (the District Court as well as, on appeal, the Trade and Industries Appeals Tribunal) has full jurisdiction to establish whether the ACM has proved to the requisite legal standard that an infringement has occurred, and that the infringement affected competition to an appreciable extent. If an undertaking argues that Article 6(3) of the Competition Act should be applied, it has to prove that the criteria of Article 6(3) have been fulfilled.

The Trade and Industries Appeals Tribunal follows the case law of the Court of Justice of the EU with regard to the standard of proof. Thus, the ACM must show precise and concordant evidence in order to establish the existence of the infringement. It is not necessary for every item of evidence produced by the ACM to satisfy those criteria in relation to every aspect of the infringement: it is sufficient if the body of evidence relied on by the institution, viewed as a whole, meets that requirement.

This means that the ACM cannot be required to produce documents expressly attesting to contracts between the traders concerned. The items of evidence should, in any event, be capable of being supplemented by inferences that allow the relevant circumstances to be reconstituted. The existence of an anti-competitive practice or agreement may therefore be inferred from a number of coincidences and indicia which, taken together, can constitute evidence of an infringement of the competition rules, in the absence of another plausible explanation.

In Dutch administrative law, a low threshold of probative value and the principle of unfettered evaluation prevails, which means that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility.

According to the generally applicable rules on evidence, the credibility and, therefore, the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed, and the soundness and reliability of its contents. In particular, great importance must be attached to the fact that a document has been drawn up in close connection with the events.

In cartel cases, the ACM acts as the finder of fact and applies competition law to those facts.

There are no limitations on the ACM's use of evidence gathered in one procedure in another procedure, regardless of whether the evidence has been obtained in a leniency procedure or from another jurisdiction, provided that the evidence has been obtained by the other authority in a lawful way.

In Dutch administrative law, a low threshold of probative value and the principle of unfettered evaluation prevails, which means that the only relevant criterion for the purpose of assessing the probative value of evidence lawfully adduced relates to its credibility.

According to the generally applicable rules on evidence, the credibility and therefore the probative value of a document depends on its origin, the circumstances in which it was drawn up, the person to whom it is addressed, and the soundness and reliability nature of its contents. In particular, great importance must be attached to whether a document has been drawn up in close connection with the events to which it relates.

Economists specialising in competition economy are often retained to provide insights into market definitions or, for instance, into the competition mechanisms of a market in a specific sector. The involvement of economists may occur in any stage of the procedure. Submitting expert reports when giving a view on the Statement of Objections forces the ACM to refute the findings of the expert report.

See 2.12 Attorney-Client Privilege, above.

Since the ACM is the only authority that has the power of public enforcement of the Competition Act, it is not possible to have multiple public enforcement proceedings involving the same or related facts. It is, however, possible that the same or related facts form the basis of civil law proceedings by undertakings that claim damages caused by the infringement of the cartel prohibition.

Furthermore, where an investigation is subject both to EU and Dutch competition law scrutiny, after consultation, the Commission has the authority to relieve the ACM of its competence under Article 11 of Regulation 1/2003.

Nysingh Advocaten–Notarissen N.V

Burg. Roelenweg 11
8021 EV Zwolle

+31 (0)88 752 00 00

info@nysingh.nl www.nysingh.nl
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Authors



Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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