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.

Unlike the European Commission, which issued its Commission Notice on the conduct of settlement procedures in view of the adoption of Decisions pursuant to Article 7 and Article 23 of Council Regulation (EC) No 1/2003, in cartel cases in the Netherlands there is no formal or otherwise explicit procedure with regard to settlements or plea bargaining.

In some cases, however, the ACM has showed its willingness to explore alternative ways to conclude cases, normally on the initiative of the companies involved and usually involving some kind of simplified case conclusion procedure. Whether or not to discuss a settlement is at the discretion of the ACM.

In the Natural Vinegar cartel, for instance, the ACM reduced fines by 10% because the parties involved, inter alia, acknowledged the alleged facts and the legal qualification of the misconduct. It is not clear from the ACM’s decision whether or not the parties involved agreed with the ACM that they abstained from the right to appeal.

Furthermore, the Competition Act provides a procedure according to which the ACM may decide to refrain from further investigation and sanctions if the companies involved in the investigation pledge in writing to refrain from certain behaviour, enabling the ACM to adopt a so-called commitment decision (comparable to a commitment decision under Article 9 of EU Regulation 1/2003). The ACM has the discretion to refuse a pledge if it intends to impose a fine. Normally, it will refuse a pledge in the case of hardcore cartels or when the pledge has been made when the investigation has nearly been completed.

According to the ACM, compliance programmes are particularly relevant to sectors in which ACM enforcement policy has been successful (eg, construction and insurance). Following ACM intervention, companies are willing to impose self-regulation, in the hope of ensuring enduring compliance with the Competition Act. It is up to the ACM to convince the companies involved that a system of checks and balances is most conducive to maintaining compliance.

Nysingh Advocaten–Notarissen N.V

Burg. Roelenweg 11
8021 EV Zwolle

+31 (0)88 752 00 00

info@nysingh.nl www.nysingh.nl
Author Business Card

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.

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

Please select at least one chapter and one topic to use the compare functionality.