Dutch district court upholds fines for concerted practices in procurement procedure


On 30 April 2015, the Dutch District Court of Rotterdam upheld the fines imposed by the Dutch Authority for Consumers and Markets ("ACM") for concerted practices in a procurement procedure for domestic help services.

In 2006 the municipality of South-East Friesland started organising procurement procedures for domestic help services. Three providers of said services joined hands to prepare for the tender process and established a procurement working group. According to the District Court, the collaboration went further than a neutral exchange of procedural information. It ruled that the working group had a well-defined objective to collaborate in procurement procedures.

During the meetings of the working group, the companies concerned exchanged sensitive registration and pricing policies and the Court reasoned that "since the companies concerned actually offered the same prices", "there is a presumption of a causal connection between the concerted practice and the subsequent market conduct". The District Court decided that the practices were a restriction of competition by object and had an appreciable effect on competition. As such, there was no need to further determine the effect of such practices.

The considerations that led the Court to conclude that the concerted practices had an appreciable effect are harder to follow. Especially since the Court made reference to dissimilar case law on concerted practices involving notary services offered in a specific service area, and in which practically all notaries were involved, which is not the case here.

From a procedural perspective, the case sheds light on the question of whether a claimant can successfully argue that evidence collected from third parties should not serve as evidence where such third parties were not cautioned. With reference to criminal case law of the Dutch Supreme Court, the District Court unequivocally rejected this suggestion on the basis that the caution does not seek to protect the claimant, and so there can be no legal consequences of non-compliance in such circumstances.

Source: www.rechtspraak.nl, ECLI:NL:RBROT:2015:2912, published 30 April 2015

Reproduced from Practical Law with the permission of the publishers (www.practicallaw.com).