A recent ruling from the highest Dutch court in competition law cases provided some interesting insights into the application of the AKZO presumption and other aspects of competition law. The Dutch-language ruling can be found here.

The ruling of the Trade and Industry Appeals Tribunal (TIAT) is the final chapter in a procedure that has lasted for almost a decade. Back in 2015 the Dutch competition authority (ACM) fined the company Samskip for almost a million euros for being involved in a cartel on the market for the cold storage of fish. Based on the AKZO presumption, the fine was put on Sampskip as the parent company of the subsidiary that was engaging in the cartel. The AKZO presumption is based on Case C-97/08 P and sets the rule that a parent company, having 100% or near-100% shareholding in a subsidiary, exercises decisive influence over the conduct of that subsidiary, and can therefore be held liable for any anti-competitive behavior the subsidiary engages in.

Interesting to note is that Samskip argued that the ACM was not allowed to apply the AKZO presumption based on the principle of proportionality. Although Samskip did own 100% of the shares in the Dutch subsidiary, Samskip argued that they were deceived by (an employee of) the subsidiary. The employee of the subsidiary was engaged in a scheme with a competitor to lower the value of the subsidiary, so that the competitor could purchase the subsidiary from Samskip. An interesting detail from the ruling is that the two employees who were in contact were brothers.

However, all of this does not matter for the application of the AKZO presumption, the TIAT ruled. The ACM was not, based on the principle of proportionality, obliged to disregard the AKZO presumption. On the contrary, national competition authorities are held to apply the AKZO presumption in relation to determining liability for competition law violations. Also, the scheme of the two brothers does not provide enough evidence to rebut the AKZO presumption, the TIAT ruled. Based on the case file, it was clear that Samskip was aware of the cartel that the subsidiary was engaged in, showing that the subsidiary was not acting autonomously on the market.

Two more interesting points to note from the ruling: the dawn raid that the ACM performed was not marked as a ‘fishing expedition’, despite the broad subject matter. The description provided by the ACM - describing all sorts of cold storage - was specific enough and did include the cold storage of fish. Lastly, the whole procedure took almost a decade, meaning that the reasonable time limit of 5 and a half years for due process was exceeded. This resulted in a ‘discount’ of in total EUR 45,000 (EUR 5,000 per half year). However, we doubt whether this discount was worth the almost ten years of procedures for Samskip.

If you need more information or further guidance in this area, please contact Pauline Kuipers and Joost van Roosmalen.

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