Contributed By Nysingh Advocaten-Notarissen N.V
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.