Last Updated June 13, 2019

Law and Practice

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.

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.

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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