Competition & Antitrust
Two recent rulings show that Dutch courts are willing to take a stance on cartel damage claims. A district court recently confirmed the civil liability of cartel participants and their group entities in the gas-insulated switchgear cartel, while another district court rejected a request for provisional witness hearings in an air freight case.
Following the Streamlining Act, a single body has replaced the competition, consumer and telecommunications regulators: the Authority for Consumers and Markets. The act also introduces a number of changes concerning merger control, appeals against fines and employees' right to remain silent in case of an investigation against their former employer.
The Rotterdam District Court recently ruled that the Authority for Consumers and Markets (ACM) should have granted a leniency applicant full immunity from fines after it confessed to its involvement in a cartel. The ACM argued that the leniency applicant was eligible only for a fine reduction instead of full immunity, because the ACM had launched an investigation into the cartel before the leniency applicant had filed its application.
The District Court of Amsterdam recently found itself competent to rule on damages claims against the non-Dutch participants of a sodium chlorate cartel through anchor defendant Akzo Nobel. The arbitration and choice of forum clauses laid down in the customer contracts did not alter this. Companies should keep in mind that they cannot always rely on these clauses in cartel damages claims.
The Trade and Industry Appeals Tribunal recently ruled that the Authority for Consumers and Markets (ACM) was wrong to fine the Dutch National Association of General Practitioners (LHV) for breaking a seal affixed by ACM officials during a dawn raid. According to the tribunal, the breaking of the seal could not be attributed to LHV and it therefore quashed the fine.
According to a recent decision of the Trade and Industry Appeals Tribunal, the Authority for Consumers and Markets (ACM) was wrong to find that the relevant market should be limited to each individual tender project when applying the national de minimis clause to systematic bid-rigging cartels. The tribunal also clarified that the five-year limitation period relates only to the ACM's power to impose a fine.