Cartels 2020

Last Updated June 12, 2020

Netherlands

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 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, which has "excellent knowledge of the field and ability to provide quick responses and no-nonsense, to-the-point advice" (Chambers Europe Guide 2020), 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 through 155 firms.

Public enforcement actions regarding cartels are based on Article 6 of the Dutch Competition Act ("the Act") and Article 101 of the Treaty on the Functioning of the European Union (TFEU). In fact, Article 6 of the Act is based on Article 101 of the TFEU, which prohibits the same conduct. Given the relationship between these provisions, the Act refers to the TFEU for the definition of terms set out in Article 6, such as "undertaking" and "concerted practices". Other concepts in the Act regarding cartels are generally also applied in line with EU competition law.

The Authority for Consumers & Markets (ACM) is entrusted with the public enforcement of Article 6 of the Act. When conduct also affects trade between EU member states, the ACM is empowered to enforce Article 101 of the TFEU as well. The ACM replaced the Dutch Competition Authority in April 2013. Its enforcement powers are governed mainly by the Act, the Establishment Act of the Authority for Consumers and Markets, and the Dutch General Administrative Law Act. Furthermore, several regulations, decisions and policy guidelines on the application of Article 6 of the Act and the powers of the ACM have been issued by the Minister of Economic Affairs. In addition, the ACM has published several documents, such as guidelines and opinions regarding the application of the cartel prohibition and procedures.

Private enforcement actions regarding cartels can be based on Article 6(1) of the Act in combination with clauses of the Dutch Civil Code like Article 6:162 (on tortious acts). The Private Competition Law Enforcement Implementation Act of 25 January 2017 implemented EU Directive 2014/104 and introduced new provisions for the private enforcement of infringements of Article 101 of the TFEU. These are laid down in Articles 6:193k-6:193t of the Dutch Civil Code.

The conditions precedent for a successful claim on the basis of Article 6:162 of the Dutch Civil Code are that there has to be an unlawful breach of Article 6(1) of the Act, which breach bears a causal link with the damages the claimant has suffered.

For a more detailed discussion of these conditions, see 5 Private Civil Litigation Involving Alleged Cartels.

Article 6(1) of the Act provides that “agreements between undertakings, decisions by associations of undertakings and concerted practices of undertakings, which have as their object or effect the prevention, restriction or distortion of competition on the Dutch market, or a part thereof, are prohibited.” The cartel prohibition covers all types of competition restrictions, such as price, cost and output co-ordination, territorial and customer distribution agreements and hardcore bid rigging, as well as mitigated forms such as cover pricing, any exchange of competition-sensitive information and other agreements that have as their object or effect a decrease of competition among competitors, either horizontal or vertical. When applying Article 6(1), a distinction is made between conduct that has the "effect" of restricting competition and conduct that has the "object" of restricting competition, similar to the assessment under Article 101 of the TFEU.

Based on settled case law, a restriction of competition has to be appreciable in order to establish an infringement of Article 6(1). The concept of a single and continuous infringement also applies within the framework of this article.

In practice, the ACM deals mainly with horizontal conduct that restricts competition, such as price fixing, bid rigging and market sharing. Vertical conduct, such as agreements between suppliers and purchasers, has rarely been investigated by the ACM in recent years. However, the ACM recently announced that it will put more emphasis on enforcement concerning vertical conduct such as retail price maintenance; it has recently started investigations involving this type of conduct, especially concerning restrictions applicable to online shops.

The power of the ACM to impose sanctions for infringements of Article 6 of the Act is subject to a limitation period of five years. This limitation is interrupted by any act on the part of the ACM aimed at conducting an investigation or initiating proceedings concerning the infringement, and by any such act on the part of the European Commission or other national competition authority of a member state of the EU concerning a violation of Article 101 of the TFEU.

The interruption commences on the first day on which at least one undertaking or association of undertakings that was party to the violation, or one of the persons, as referred to in Article 51(2)(2°) of the Netherlands Criminal Code (principals and de facto managers), is notified in writing of the act. The time limitation commences anew at the moment of the interruption.

In any event, the power to conduct an investigation or initiate proceedings shall ultimately lapse ten years after the violation is committed, plus the period during which the time limitation is suspended pursuant to Article 5:45, paragraph 3 of the General Administrative Law Act.

Article 6(1) of the Act concerns cartel conduct that has an effect on Dutch markets. Therefore, the ACM’s personal jurisdiction extends to those cases in which cartel conduct has an effect on the Dutch market or a part of it, irrespective of the location of the undertakings or associations concerned: the ACM has the competence to impose sanctions on an undertaking even if that undertaking is located in another country. In the Shrimps case, the ACM imposed fines on undertakings located abroad (Denmark and Germany) for the first time. Furthermore, Article 5 of EU Regulation 1/2003 gives the ACM the power to apply Article 101 of the TFEU – ie, cartel conduct that may affect trade between member states – to individual cases.

No specific principles of comity are applied within the context of Dutch competition law. The ACM, however, co-operates closely with the European Commission and other European National Competition Authorities (NCAs) through the European Competition Network (ECN), as required by EU Regulation 1/2003; for example, in regard to case allocation between the NCAs and sharing information with and using information supplied by another NCA (Article 12, Regulation 1/2003). On the basis of this regulation, the ACM may likewise carry out unannounced inspections in the Netherlands on behalf of another NCA.

Investigations can be triggered in four ways:

  • on the ACM’s own initiative;
  • after a complaint has been issued by a natural or legal person;
  • after a tip has been received by a natural or legal person; or
  • after one of the cartel participants submits a leniency request to the ACM.

Depending on the information that the ACM receives, it will gather more data on market positions before taking further investigative steps. If the case so requires, economic analyses and digital desk research may be conducted, or collaboration with other authorities such as public prosecution and the Dutch Authority for the Financial Markets (AFM) may be sought (see also 3.4 Inter-agency Co-operation/Co-ordination).

The ACM also has the option to start sector inquiries.

After these steps, most of the time the ACM will carry out a dawn raid, copy documents and digital data, and interview employees.

The ACM is entitled to enter every place (with the exception of a private home) without the consent of the occupier and may take with it the requisite equipment. If necessary – ie, if the company involved refuses entrance – it may gain entry with the assistance of the police. Entitlement to enter "every place" means that the ACM is, for instance, also entitled to enter employees’ cars.

ACM officials are authorised to enter a private home without the resident’s permission, in so far as this is necessary, within reason, for the purpose of exercising the ACM’s investigative powers. However, this requires obtaining a warrant in advance from the examining magistrate entrusted with handling criminal proceedings before the District Court of Rotterdam. If asked for, the warrant must be presented.

ACM officials are authorised to seal off business premises and objects, in so far as is reasonably necessary for the exercise of their investigative powers. As a rule, officials will seal off offices at business premises if they are not able to complete the investigation within one day.

Companies are obliged to co-operate fully with ACM officials, who may reasonably demand this in the exercise of their powers, within such reasonable time limit as they may specify. Refusal to co-operate will result in a fine being issued.

The ACM is allowed to execute its investigative powers only to the extent that is reasonably relevant for the completion of the task at hand; ie, to examine data that reasonably falls within the scope of the investigation.

However, the ACM is not entitled to examine communication falling under attorney-client privilege.

ACM officials are entitled to seize documents or data carriers like laptops or mobile phones only if it is not possible to make copies at the companies’ premises, and only for the time needed to make those copies. Written proof of the seizure shall be provided.

In practice, an inspection focuses on digital data (see 2.9 Enforcement Agency’s Procedure for Obtaining Evidence/Testimony). To this end, the ACM published its inspection procedure regarding digital data in 2014. Once data has been secured, the enforcement official hands an overview of the data in the secure data set to the party involved, including the relevant hash values. The purpose of calculating a hash value is safeguarding a file’s integrity. Any change to a file will result in a different hash value.

No later than the moment of making it available for perusal, the ACM official hands to the party involved an overview of the data set that, given its nature and/or contents, may reasonably fall within the objective and subject of the investigation (the within-scope data set), and of the manner in which the within-scope data set was realised. According to the 2014 ACM Procedure for the inspection of digital data policy rules, the search queries that have been used are provided immediately to the party involved after a data search has been conducted, and the party involved also receives the reasons for using the search queries at the moment of granting the inspection. It could be suggested that providing the search queries after a data search has been conducted is not in accordance with the law, since it gives the ACM the authority to require inspection of business information and documents, which implies that the ACM should ask for the documents it wants to inspect.

An enforcement official may see reasons to demand inspection of the data under Article 5:17 of the General Administrative Law Act without having inspected it at the time the data was demanded and secured. If the enforcement official inspects the demanded and secured data in order to assess whether it is within-scope, and the party involved indicates that some of the data concerns privileged correspondence, the enforcement official will give the party involved the opportunity to be present at the offices of the ACM when such data is inspected.

There is no obligation to keep documents or data on the basis of the Act or the General Administrative Law Act. There may be obligations to keep documents and data on the basis of other laws (like tax laws).

However, once the ACM requires inspection of business information and documents, the spoliation of that information or those documents would mean a violation of the obligation to co-operate with the ACM, for which the ACM may impose fines. The ACM did so in 2019, imposing a fine of EUR1.84 million on a company in a case in which employees of a company under investigation left several WhatsApp groups, and deleted chat conversations during a dawn raid.

The ACM has the power to conduct interviews with any company employee. This power is not limited to the official representatives of the company but can involve any of the employees that may be relevant for the ACM’s investigation. Interviews may be held on the spot during a dawn raid as well as afterwards. They may take place at the company’s premises or at the ACM’s offices. The ACM contends that a company’s employee is obliged to answer questions, although he or she has the right not to answer questions that could incriminate his or her employer. Counsel are allowed to attend interviews. ACM officials take minutes of the interview and will ask the employee to sign these minutes; it is recommended to exercise due care in doing so, because signing will be seen as agreeing on the contents of the minutes.

Officers or employees have the right to be assisted by a legal representative. The ACM may refuse to allow assistance by a person against whom there are serious objections. This does not apply, however, to counsel that are admitted to the Bar. Legal counsel are not allowed to give answers or to advise on the answer, although they are allowed to advise the interviewee to remain silent.

In general, legal counsel assisting the company during a dawn raid also assist officers or employees during interviews. Officers or employees are, however, allowed to obtain separate counsel. Especially when the interests of company and employee are not aligned, it is advisable that employees obtain separate counsel.

In order to be able to control whether the ACM’s officials stay within the scope of their investigation, at an initial meeting at the start of the investigation counsel should request a copy of the ACM officials’ mandate and review whether its scope is sufficiently defined as to subject matter. They should verify whether all ACM officials have proper identification and make appointments, for instance, requiring that ACM officials must always be accompanied if they want to walk through the building or that no interviews will take place without attendance of a counsel. During the investigation itself, counsel can oversee the investigation by accompanying ACM officials that scan company documents or by ensuring that the legal privilege procedure is followed, and the officials stay within the scope of the investigation. Furthermore, during the investigation, counsel should stay in contact with the company management permanently to evaluate the progress of the investigation; for instance, in order to be able to decide whether the company should submit a request for leniency.

After the investigation at the premises, counsel should evaluate with the company what information the ACM discovered, what the possible consequences of that information are and what next steps should be taken.

In practice, an inspection focuses on digital data. Once the data has been secured, the enforcement official hands an overview of the data in the secure data set to the individual involved, including the relevant hash values. The purpose of calculating a hash value is safeguarding a file’s integrity. Any change to a file will result in a different hash value.

No later than the moment of making them available for perusal, the enforcement official hands to the party involved an overview of the data that is included in the within-scope data set, and of the manner in which the within-scope data set was realised. The search queries that have been used are provided immediately to the party involved after a data search has been conducted.

An enforcement official may see reasons to demand inspection of the data under Section 5:17 of the General Administrative Law Act without having inspected it at the time the data was demanded and secured.

If the enforcement official inspects the demanded and secured data in order to assess whether it is within-scope, and the party involved indicates that some of the data concerns privileged correspondence, then the enforcement official will give the party involved the opportunity to be present at the offices of the ACM when such data is inspected.

Non-documentary information can be obtained in the same ways as documentary evidence; ie, through complaints, tips and leniency requests. Furthermore, the ACM can conduct interviews with various people in the field and gather relevant market data through (online) desk research. The ACM is not entitled to tap telephone conversations, but if the public prosecutor’s office (lawfully) tapped telephone conversations within the framework of a criminal law investigation and encounters information that may be relevant for the ACM (for instance, a conversation on bid rigging), then the public prosecutor may share that information with the ACM, and the ACM is allowed to use such information as evidence.

Companies are required to co-operate with the ACM investigations and, if so requested, produce the documents within the scope of the investigation, and the ACM is authorised to demand the inspection of any type of business data or document. Also, it has jurisdiction over practices that affect the market in the Netherlands, irrespective of where the companies involved are located. Therefore, the authority has the power to request the provision of information of companies located outside the Netherlands. The General Administrative Law Act also does not limit these powers to companies located in the Netherlands. Where needed, the ACM may request the assistance of other competition authorities.

The ACM considers documents to be privileged regardless of what regulation the data is related to. In other situations, existing jurisprudence is followed with regard to the material scope of the right to privileged correspondence. The procedure applies to communication with a lawyer (ie, a counsel that is admitted to the Bar), but not to communication with other legal professionals. On the other hand, according to Dutch law, attorney-client privilege also exists in relation to in-house lawyers who are admitted to the Bar. If ACM officials conduct investigations on the basis of Dutch competition law, Dutch national rules apply and the correspondence with both in-house and external counsel, if admitted to the Bar, is covered by attorney-client privilege. The same goes for investigations by the ACM at the request of the Commission or a competition authority of another member state. However, if ACM inspectors only assist the Commission officials, EU rules apply and correspondence with in-house counsel, even those admitted to the Bar, has no legal privilege coverage.

When inspection of data is demanded, the company may indicate that it contains privileged correspondence. If the company believes that the document is privileged (in part or completely), then it is not obliged to disclose the entire contents to the ACM official. The company must support such claims by putting forward to the enforcement official grounds that the document is indeed protected by confidentiality. The company can indicate and explain, in particular, who the author is, whom the file is for, the respective positions and duties of each of them, and the objective with which and the context in which the document was created. If the ACM official is not convinced of the claimed privileged nature of the data but the company persists in its claim, the ACM official takes the data with him in a sealed envelope. After the dawn raid is finished, the sealed envelope will be handed over to the Legal Professional Privilege (LPP) officer for verification of the privileged nature of the data. LPP officers are ACM officials who are not and will not be involved in the investigation in relation to which they have examined data or documents, or in any other investigation in which the data or documents (or parts thereof) from the former investigation are used. They are not, however, independent. The LPP officer will give the company the opportunity to indicate which of the data (or parts thereof) that has been submitted to the LPP officer is, in his or her opinion, privileged.

The ACM organisation has taken the necessary measures (technical and non-technical) to guarantee compliance with the safeguards mentioned in this procedure. For example, it stores correspondence with the LPP officer on a closed network that cannot be accessed by ACM enforcement officials, alongside the data that is given to the LPP officer.

The procedure regarding legal privilege is not mandatory. If the company believes that an assessment by the LPP officer offers too few safeguards, it is free to start (civil law) interim injunction proceedings against the inspection (superficial or not) of the document by an ACM official. In such a case, the ACM official can leave the document in question with the company, in a sealed envelope, and the party involved has ten working days to have a writ served on the Dutch state.

For interrogations with a purpose of adopting a punitive sanction, ACM officials are legally required to inform the individual being interrogated of its right to remain silent. The interrogated person is not obliged to provide any statements regarding the perpetration of Article 6(1) of the Act. This is a codification of the nemo tenetur principle (see also 2.5 Procedure of Dawn Raids).

Generally, companies and employees comply with requests for information, since non-cooperation with the ACM can result in a fine of up to EUR900,000 or 1% of the annual turnover. This does not mean, however, that requests for information should not be treated critically. If, for instance, requests are unreasonable or vague, this should be discussed with the ACM.

The ACM is authorised to access any type of document, regardless of whether it contains confidential or proprietary information. After the ACM adopts a decision, it will send it to the company involved in order to give it the opportunity to indicate any confidential information. The ACM will then publish a public version of the decision with the confidential information removed.

From a formal perspective, the target of a cartel investigation has the opportunity to raise legal and factual arguments against the ACM’s view on the case when the ACM has issued its Statement of Objections (SO). The company involved can submit its comments on the SO in writing and orally. In practice, however, defence counsel will be in constant contact with the ACM from the outset of an investigation, submitting information in favour of the company. Defence counsel may also try to persuade the ACM to adopt a so-called commitments decision (comparable to a commitments decision under Article 9 of EU Regulation 1/2003) and stop the investigation.

The rules of the Dutch leniency programme have been laid down in the Policy Rule of the Minister of Economic Affairs of 4 July 2014, No WJZ/14112586, on the reduction of fines in connection with cartels (Leniency Policy Rule). The Leniency Policy Rule does not protect the company from private enforcement actions by third parties.

The leniency programme only applies to "cartels" – ie, an agreement or concerted practice between two or more competitors with the objective of impeding competition – in violation of Article 101 of the TFEU or Article 6 of the Act.

Immunity

The ACM grants immunity from fines to the first leniency applicant to submit a request for immunity from fines with regard to a cartel, if the application concerns a cartel into which the ACM has not yet launched an investigation and the applicant provides information that enables the ACM to perform a targeted inspection. No immunity will be granted if the applicant has coerced another undertaking into participating in the cartel. Furthermore, the applicant is obliged to co-operate with the authority, which means that the applicant refrains from any action that may impede the investigation or the proceedings until the decision to impose an administrative fine becomes final with respect to all practices involved in the cartel. The applicant is also obliged to provide the ACM with all information regarding the cartel that they have or may reasonably obtain, of their own accord or at the ACM’s request, as soon as possible, and to ensure that individuals who are working for the applicant and, in so far as is reasonably possible, individuals who have worked for the applicant are available for making statements. The company must cease any involvement in the cartel after submission of the leniency application, unless and in so far as the ACM considers the continuation thereof to be reasonably necessary in order to preserve the effectiveness of inspections.

The ACM also grants immunity from fines to a leniency applicant if the above-mentioned conditions have been met and the application concerns a cartel into which the ACM has already launched an investigation but not yet sent a statement of objections to any of the parties involved. This immunity will only be granted, however, if the application provides the ACM with documents that stem from the period of the practice in question that were not already in the ACM’s possession, and on the basis of which the ACM is able to prove the existence of the cartel.

A company or individual considering applying for leniency may contact the ACM to exchange ideas about a body of facts and the applicability of the leniency policy in that context. This may take place anonymously or through a lawyer and may concern a hypothetical set of facts. A prospective leniency applicant may also enquire with the ACM by telephone, but solely through a lawyer, as to whether immunity from fines (the position of the first-in-the-door whistle-blower) is still available. If the ACM responds positively to the enquiry, the lawyer is required to submit an application for immunity from fines immediately.

A leniency application includes a written leniency statement that contains, inter alia, a detailed description of the cartel arrangement, including the products or services involved, the geographical scope, the duration, the functioning of the cartel and the estimated market volumes or sales affected by the cartel, as well as the specific dates, locations, contents of and participants in the cartel interactions. Furthermore, it must mention the names and addresses of all the undertakings that participate or have participated in the cartel, as well as the names, positions, working locations and, where relevant, home addresses of the individuals who are or who have been involved in the cartel.

A leniency application also contains evidence corroborating the statements, in so far as the applicant has such evidence or such evidence is reasonably available to the applicant at the time of the submission of the application.

A natural person who submits a leniency application may be eligible for the same immunity or reduction of a fine as the undertaking at which he or she works, if he or she declares that he or she wishes to be considered a leniency co-applicant with the undertaking, and he or she meets the conditions for immunity from fines on his or her own.

With the ACM’s permission, a leniency statement may be submitted orally, if the ACM believes that the leniency applicant has a legitimate interest in doing so. In such cases, the ACM records the oral statement and draws up a transcript.

The ACM does not disclose the identity of the leniency applicant to third parties until the statement of objections has been issued to anyone involved in the cartel, unless the leniency applicant has consented to disclosure.

In accordance with Article 12 of EU Regulation 1/2003, the ACM only forwards a leniency statement to another competition authority or to the European Commission if:

  • the conditions of the Commission Notice on co-operation within the Network of Competition Authorities (OJ, 2004, C 101) are satisfied; and
  • the protection against disclosure provided by the receiving competition authority or the European Commission is equivalent to that offered by the ACM.

Markers

A leniency applicant who submits an incomplete leniency application may be eligible for a marker if the ACM believes the application offers a concrete basis for reasonable suspicion of the applicant’s involvement in a cartel, and the leniency applicant provides information on at least the name and address of the leniency applicant, the cartel participants, the affected products or services, the cartel’s geographical scope, the cartel’s duration, the nature of the cartel’s practices and whether the leniency applicant has approached or may approach the European Commission with regard to the cartel. The duration of the marker will be set by the leniency officer. As soon as a complete application has been submitted within the time limit the leniency officer has set for it, the marker will turn into a proper leniency application.

Reduction of Fines

The ACM grants a leniency applicant a reduction of at least 30% and no more than 50% on a fine if immunity from fines is no longer available because the applicant is not the first-in-the-door and the ACM has not yet sent a statement of objections. In order to qualify for reduction, the applicant must be the first to submit an application that contains information with significant added value, and comply with the obligation to co-operate. The second company that submits an application for reduction of a fine can get a reduction of 20-30%; subsequent applicants can get a reduction of up to 20%.

Lastly, the ACM does not keep an official public record of granting leniency, nor does it publish it in its annual reports. However, in each decision in which it imposes fines, the ACM will publish the extent to which it applied leniency.

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, such as 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 co-operation 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, in so far as the exchange is necessary for the proper fulfilment of the authority’s tasks.

The ACM concluded such an agreement with the public prosecution (Openbaar Ministerie) as well. The Collaboration Protocol between the ACM, the public prosecution and the Dutch Tax and Customs Administration enables the exchange of information. 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.

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

There is no provision in the Dutch competition law system for civil enforcement by the competition authority.

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 competent courts have 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 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 that, taken together, can constitute evidence of an infringement of the competition rules, in the absence of another plausible explanation.

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 at 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.

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.

The sanctions that the ACM may impose on undertakings are fines and orders for periodic penalty payments. An order for periodic penalty payments is designed to lead, among other things, to the quick termination of an infringement, and therefore serves a different purpose as opposed to a fine. A fine and an order for periodic penalty payments can both be imposed for the same infringement.

The maximum fine that the ACM may impose per violation of the cartel prohibition is EUR900,000 or 10% of the total (global) annual turnover of the undertaking involved, whichever is higher. The maximum amount also depends on the duration of the cartel, since the aforementioned maximum can be multiplied by the number of years the violation lasted (with a minimum of one and a maximum of four years). In the case of repeat violations, this fine can even be doubled.

As under the EU competition law regime, a parent company can (and will) be held liable for a fine imposed on its subsidiary. It is for the parent company to demonstrate that it does not or did not exercise a decisive influence over the behaviour of the subsidiary. Moreover, the highest administrative court in the Netherlands with respect to penalty decisions of the ACM recently ruled that the ACM may hold an investments firm liable for a cartel infringement committed by its portfolio company, because it exercised decisive influence over that portfolio company. In this particular case, the investments firm was fined separately instead of jointly and severally, as is normally the case regarding parent companies and their subsidiaries. This was due to specific circumstances of the case.

The ACM may also impose fines on individuals up to a maximum of EUR900,000. Such a fine may be doubled if the individual committed a similar infringement within the previous five years.

The level of fines that the ACM may impose must be determined according to the rules laid down in the 2014 Policy Rules of the Minister of Economic Affairs on the imposition of administrative fines by the ACM, which provide detail on the manner in which the ACM may exercise its power to impose administrative fines – within the boundaries of the law.

The ACM sets a basic fine of between 0% and 50% of an undertaking's relevant turnover, depending on the seriousness of the violation, the circumstances in which it was committed and its duration. The relevant turnover is the one in the last full year in which the company committed the violation, multiplied by a factor of 1/12 for each month that the violation lasted.

The ACM may impose a sanction directly, but there is a separation (Chinese wall) between the ACM department that carries out investigations and prepares the statement of objections, and the department that decides whether a sanction should be imposed. After an investigation has resulted in a Statement of Objections by the Competition Department, the case will be handed over to the Legal Department of the ACM, which is not independent but part of the ACM organisation. The Legal Department must hear parties on the SO. Parties are entitled to respond to the statement of objections at least in writing and are normally also allowed to respond orally. The oral hearing will take place in front of a hearing committee composed of officials of the Legal Department of the ACM. The Legal Department will consider the case and draft a proposal for a decision to be taken by the Board of the ACM.

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 shown its willingness to explore alternative ways to conclude cases and to reduce fines, 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.

Furthermore, the 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.

A penalty decision by the ACM, against which no further appeal is possible, counts as compelling evidence in civil proceedings regarding damages actions. It is therefore clear that a decision is important for follow-on damages claims.

Furthermore, pursuant to Article 2.87 of the Dutch Public Procurement Act 2012, implementing EU Directive 2014/24 on public procurement, contracting authorities may exclude undertakings from taking part in procurement procedures where the contracting authority can demonstrate by appropriate means that the undertaking is guilty of grave professional misconduct, which renders its integrity questionable. Violation of competition law is considered to be an example of grave professional misconduct. A penalty decision of the ACM may therefore lead to exclusion from a procurement procedure.

Under Dutch law, infringement of competition law is not a criminal offence, so an infringement cannot lead to criminal proceedings.

In the Netherlands it is not possible to impose sanctions and penalties in civil proceedings on an undertaking or individual that has violated the cartel prohibition. However, violation of the cartel prohibition may lead to civil damages claims (see 5 Private Civil Action Involving Alleged Cartels).

Having an effective compliance programme is not a mitigating factor in imposing sanctions and penalties. However, having an effective compliance programme can lead to lower fines or immunity from fines in the sense that if a company has an effective compliance programme, cartel agreements will come to light at an early stage and the company can apply for leniency.

Sanctions in the administrative procedure cannot be extended to mandatory consumer redress.

Once the ACM has issued a decision, the addressees of the decision may lodge an objection with the ACM itself. One may, however, ask the ACM in the notice of objection to agree with a direct appeal against the decision with the District Court. The objection must be lodged within six weeks of the decision being received. If the ACM agrees with the direct appeal, it will forward the notice of objections and the file to the Court. If the ACM does not agree with a direct appeal to the Court, it will reconsider its decision, after having heard the company that lodged the objection. After the ACM has decided on the objection, an appeal may be lodged with the District Court of Rotterdam, again within six weeks of the decision on the objections being issued.

An appeal against a judgment of the District Court can be lodged with the Trade and Industries Appeal Tribunal.

Both the District Court and the Trade and Industries Appeal Tribunal have full jurisdiction and can therefore review the ACM’s findings of facts and legal assessments, as well as sanctions.

On the basis of the Dutch Civil Code, natural and legal persons can claim damages caused by an infringement of the cartel prohibition.

As from 1 January 2020, the Code of Civil Procedure (CCP) (Wetboek van Burgerlijke Rechtsvordering) enables collective actions for monetary damages on an "opt-out" basis, by representative bodies that fulfil certain requirements. These include, for instance, requirements regarding the governance and funding, and the requirement that the representative body must be not-for-profit.

These rules apply to collective actions for damages initiated on or after 1 January 2020 that relate to "events" that occurred on or after 15 November 2016.

As a result of the implementation of EU Directive 2014/104/EU, the Damages Directive, on 10 February 2017, the Dutch Civil Code enables indirect purchasers to claim passing-on damages. The passing-on defence has been raised in court and has also been accepted by the Supreme Court. Regarding the amount of the claimed damages, in general, the claimant bears the burden of proof.

Article 152 (1) of the CCP provides that evidence may be submitted in any form, unless the law prescribes otherwise. The assessment of this evidence is left to the discretion of the courts, under Article 152 (2) of the CCP.

In Dutch civil procedural law, parties can demand access to documents from the other party (Article 843a of the CCP). In order for a claim under Article 843a of the CCP to be successful, the claimant must fulfil the following conditions.

  • The request must relate to documents sufficiently specified (fishing expeditions are not allowed).
  • The requesting party must have a legitimate interest in requesting the disclosure of the documents.
  • The requested documents must relate to a legal relationship (including tort) – contractual or non-contractual – to which the claimant is a party.

Article 843a(2) of the CCP provides that the court may decide in which form access to documents shall be granted. The court may, for example, appoint a trusted third party that will have access. The court can also impose a non-disclosure obligation on the party that gets access.

In some recent cases regarding damage claims related to competition law infringements, Dutch courts discussed the scope of Article 843a of the CCP. In proceedings regarding the Air Cargo cartel, both claimants and defendants requested the disclosure of documents, such as the unredacted European Commission decision and documents relating to the functioning of the cartel, including air waybills, invoices and assignment documentation. The Amsterdam District Court rejected all these requests as there was insufficient legitimate interest to order such disclosure at that stage of the proceedings.

In a case regarding the paraffin wax cartel, the District Court of the Hague affirmed that there is no general right of access to documents and that disclosure only relates to specific documents that can actually contribute to the damages action, provided that there are no overriding interests in the non-disclosure of documents or the fair administration of justice cannot be served without granting access.

In the case of TenneT/Alstom, Alstom claimed access to all documents regarding the cartel investigation of the European Commission as well as all the information that proves the damages suffered by TenneT. This claim was denied because it was not directed to obtaining specific documents.

If a previous cartel investigation concerning the same facts has been performed by the ACM, evidence derived from the previous investigation, such as an enforcement decision, is admissible as evidence in the subsequent investigation.

The amount of cases in which litigation is completed or in which a settlement is reached is still too small to draw relevant statistical conclusions. It may, however, be pointed out that most cases, even those initiated several years ago, have not yet led to final judgments. It is therefore fair to say that cartel damages claims procedures will take several years, probably up to five years or more, before a final judgment is obtained.

In civil cases, successful claimants are entitled to compensation of procedural costs (including attorneys’ fees, court fees, costs related to obtaining and preserving evidence, witness fees). However, the amount is determined via a points-based system, which depends on the type of case. In general, and in cartel cases, the awarding of compensation of procedural costs will generally cover only a small part of those costs.

See 5.6 Compensation of Legal Representatives.

Judgments rendered by the Dutch district courts (courts of first instance) may be appealed to the Court of Appeal. In general, Courts of Appeal fully review the case, both regarding the facts and the ruling, within the ambit of the lodged appeal. It is not uncommon for district courts’ judgments to be overturned on appeal.

There is no other pertinent information in this jurisdiction.

All the information in English regarding cartels and the ACM’s enforcement and leniency policy can be found through the website of the ACM (https://www.acm.nl/en/about-acm/mission-vision-strategy/our-mission).

Regarding cartel enforcement and leniency, the most relevant documents are:

On its website the ACM has made clear that these are extraordinary times and that it is therefore willing to provide guidance to companies about their intended co-operation in order to tackle the COVID-19 outbreak. It has also stated that several companies and trade organisations have already contacted the ACM asking questions, which unfortunately have not been made publicly available. Nor are its answers. The ACM has furthermore indicated that it will not act with regard to co-operation that is in the general interest of consumers and companies. In that respect, it has pointed out that it will not tolerate companies taking advantage of uncertainty and scarcity by, for instance, concluding any price-fixing agreements. So its supervision during the crisis will focus on co-operation that is not in the public interest.

Some details regarding co-operation that during the COVID-19 pandemic does not raise antitrust concerns given the general interest were given by the ACM’s chairman in an interview: supermarkets are allowed to inform each other about their stock, logistics providers are allowed to co-operate to provide Dutch citizens with food, companies are allowed to make agreements concerning a smooth approach towards debtors and medicine wholesalers are allowed to share information about their sales. He expressed that other forms of co-operation may also be allowed when limited to what is strictly necessary to combat the crisis. This will be examined on a case-by-case basis.

Nysingh advocaten-notarissen N.V.

Burg. Roelenweg 11
8021 EV Zwolle

+31 6 10017580

+31 0 88 752 00 01

cees.dekker@nysingh.nl www.nysingh.nl
Author Business Card

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 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, which has "excellent knowledge of the field and ability to provide quick responses and no-nonsense, to-the-point advice" (Chambers Europe Guide 2020), 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 through 155 firms.

Compare law and practice by selecting locations and topic(s)

{{searchBoxHeader}}

Select Topic(s)

loading ...
{{topic.title}}

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