Denial appears to be the best strategy to prevent the Authority for Consumers and Markets from publishing a decision to impose a fine and thus branding a company a cartel infringer. The district court recently granted only one request to prohibit publication of a decision on a fine. The successful applicant had explicitly denied its involvement in the alleged cartel.
Companies should beware of the civil enforcement risks of anti-competitive clauses when carrying out contract negotiations. The Supreme Court recently confirmed that the cartel prohibition's nullity penalty prevents not only clauses with an anti-competitive object, but also those with an anti-competitive effect, from being converted into valid ones.
The Supreme Court has ruled that an exclusive purchasing clause had an anti-competitive object, as it was concluded between parties that had a vertical as well as horizontal relationship with each other. This shows that one cannot blindly rely on EU case law on exclusive purchasing clauses in vertical relationships: one must first understand the legal and economic context of each case.
Price signalling is back on the agenda of cartel enforcers. The Authority for Consumers and Markets concluded its mobile telecommunications sector investigation with no evidence of price fixing, but nevertheless intends to force mobile operators to refrain from making public announcements on planned price increases, which could lead to collusion. The mobile operators have committed to comply.
To prevent antitrust skeletons from coming out of the closet after an acquisition, it is advisable not only to perform due diligence, but also to keep an eye on the duration of the liability provisions in the purchase agreement. A court recently stayed proceedings to prevent a seller's liability from lapsing before the Authority for Consumers and Markets had issued a report on a possible cartel infringement by the target prior to it being purchased.
The Netherlands appears to be an attractive jurisdiction for cartel damages proceedings for both cartel victims and cartel members. In two recent cartel damages rulings, concerning the air-cargo and gas-insulated switchgear cartels, the Dutch courts have kept up the pace.