The National Ombudsman has ruled that the Netherlands Competition Authority (NMa) was remiss in providing information in response to a question from a company. The NMa failed to immediately refer the company to a specialist lawyer when it was suspected that the Competition Act might have been violated. The NMa has stated in response that it takes the report very seriously and has meanwhile changed its policy.

On 1 June 2010 the new rules on distribution agreements of the European Commission entered into force. Contracts must be amended in light of the new rules before 1 June 2011. On Thursday, 23 September 2010, the EU & Competition practice group organised a seminar titled “Making the Most of Distribution Agreements and Competition Law”. The new rules were explained during that seminar. In the October 2010 issue of Contracteren, Minos van Joolingen and Dorien Noordeloos (EU & Competition practice group) also discuss the new rules at length.

On 16 August 2010 the Netherlands Competition Authority (NMa) published a new “Analogue and Digital Investigation Procedure”. The purpose of the procedure is to perform investigations and safeguard the rights of companies and individuals more efficiently. Since 17 August 2010 the new procedure has replaced the procedure published in 2007.

The European Commission (‘Commission’) has fined the Dutch beer breweries Heineken, Bavaria and Grolsch in 2007 because of their involvement in a cartel on the Dutch beer market. The total amount of fines for these companies amounted EUR 273 million. The Court of First Instance (‘Court’) now judged this fine. This resulted in a reduction of the fines for Heineken and Bavaria. The fine imposed on Grolsch has been completely annulled.

Small undertakings get more room to make price-fixing agreements, in this way they might be able to compete better with large undertakings. Currently undertakings are only allowed to make price-fixing agreements in case their joint market share is not more than 5% and their joint turnover amounts not more than EUR 40 million. Under the new rules the market share limit will be extended to 10% and the turnover threshold will disappear. 

The UK competition authority, the Office of Fair Trading (‘OFT’) has published new guidance for undertakings on competition law compliance. The new guidance of the OFT is published to help undertakings to create awareness of competition law within their undertaking. The OFT pays special attention to directors and their responsibility in creating competition law awareness.

On 17 October 2011 the European Commission (‘Commission’) has adopted a package of measures aimed at increasing the transparency and fairness of competition proceedings. The package consists out of best practices guidelines on the conduct of antitrust proceedings, best practices for the submission of economic evidence and data collection, and a revised hearing officer mandate.

The European Commission has repealed a decision of 11 November 2009 finding a cartel in the market for heat stabilisers in so far as it concerns the companies Ciba/BASF and Elementis. A judgment of the Court of Justice of 29 March 2011 in an unrelated case clarified the legal rules as to limitation periods for the imposition of fines by the Commission under Articles 101 and 102 of the Treaty. As a result of that clarification, it was clear that the Commission decision of 2009 was incorrect in that the limitation period on these two companies had expired.

The NMa (Netherlands Competition Authority) has sent out a remarkable signal by imposing fines on Supervisory Directors, as Silvia Vinken and Minos van Joolingen (EU & Competition practice group) noted in the Financieele Dagblad of 16 September 2010. Since October 2007, managers and directors of companies can be personally fined for violations of the Competition Act in which they had de facto control. In the past the NMa did not exercise that power, but it recently fined four Supervisory Directors and one Managing Director.

The European Commission has ordered the Dutch authorities to recover €76.3 million plus interest from NOS, the umbrella organisation of public broadcasters in the Netherlands, following an investigation under EC Treaty state aid rules into ad hoc payments from the Dutch State to the publicbroadcasters between 1994 and 2005.

The European Commission has opened three separate in-depth state aid investigations regarding the Marseille and Frankfurt Hahn airports as well as lower taxes for air passengers in Ireland that benefit almost exclusively domestic flights. The opening of an in-depth investigation gives interested third parties an opportunity to submit comments on the measures under investigation. It does not prejudge the outcome of the investigation. Finally, the Commission has approved the Dutch air passenger tax system, because it did not favour certain operators in comparison with others.

The German competition authority, the Bundeskartellamt, has fined Kraft Foods Deutschland AG (“Kraft”), Unilever Deutschland Holding AG (“Unilever”) and Dr. August Oetker Nahrungsmittel KG (“Dr. Oetker”) for the illegal exchange of competition relevant information.

The European Commission has fined 6 LCD panel producers for more than € 648 million in total for making illegal cartel arrangements. The six producers are Samsung Electronics, LG Display, AU Optronics, Chimei Innolux Corporation, Chunghwa Picture Tubes and HannStar Display Corporation. All companies are from either Korea or Taiwan.

The European Commission (‘Commission’) has started formal antitrust proceedings against luxury watch manufacturers for an infringement of competition law. The Commission investigates an alleged refusal by luxury watch manufacturers to supply spare parts to independent repairers.

The Netherlands Competition Authority (‘NMa’) and the European Commission (‘Commission’) have recently imposed fines for breach of seal. During investigations concerning anticompetitive behaviour competition authorities have the power to seal offices that are subject to the investigation. In order to protect evidence.

The European General Court has upheld the fine of € 38 million on E.On, a German energy firm, for breaking a seal during a dawn raid. The fine was not disproportionate to the infringement given the particularly serious nature of breaking a seal, according to the European General Court.

The European Commission (‘Commission’) welcomes the judgments by the General Court which uphold a decision of 2005 fining four Italian tobacco processors for operating a buying cartel in the Italian raw tobacco market.

The Netherlands Competition Authority (‘NMa’) imposed fines on two Dutch energy providers for customer-recruitment methods they used in early 2010, involving door-to-door selling. Energy provider Greenchoice is fined more than EUR 2 million, while energie:direct is fined more than EUR 1 million. Many consumers were not aware that they were actually agreeing to switching energy providers. The consumers thought that they were agreeing to receiving a discount on their energy bills from their current providers or to receiving an information packet.

The Netherlands Competition Authority (‘NMa’) has ruled that it will uphold the fines of more than EUR 20 million imposed on Dutch media company Wegener and on five individuals. The NMa has turned down the objections raised by Wegener and the fined individuals. The NMa imposed fines on Wegener and five directors of the company last year because they did not meet the requirements that were imposed on the acquisition of VNU Dagbladen and Wegener in 2000.

The UK’s specialist competition tribunal, the Competition Appeal Tribunal (“CAT”), has reduced the fines of several construction companies. The fines were imposed by the British competition authority, the Office of Fair Trade (“OFT”), for rigging bids in the construction industry.

The IPKat has just heard from his good friend Gino van Roeyen BANNINF that the dispute between Adidas and H&M, which has been keenly fought out before the Dutch Hoge Raad (Supreme Court), is going to the European Court of Justice for a preliminary reference of three questions: