Contributed By Nysingh Advocaten-Notarissen N.V
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.