NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
2.9 Arguments Against Enforcement Actions From a formal perspective, the target of a cartel investigation has the opportunity to raise legal and factual arguments against the ACM’s view of the case when the ACM has issued its Statement of Objections (SO). The company involved can submit its comments on the SO in writing and orally. In practice, however, defence counsel will be in constant contact with the ACM from the outset of an investigation, submitting informa - tion in favour of the company. Defence counsel may also try to persuade the ACM to adopt a so-called commitments decision (comparable to a commitments decision under Article 9 of EU Regulation 1/2003) and stop the investigation. 3. Leniency, Immunity and Whistle- Blower Regimes 3.1 Leniency Under Dutch competition law, a leniency pro - gramme is in place to incentivise companies involved in cartels to disclose their activities and cooperate with the ACM in return for reduced penalties. This programme is formalised in a Decree of 9 February 2021 establishing rules regarding the granting of leniency for fines related to cartels ( “the Leniency Decree” ). It is important to note that the Leniency Decree does not provide protection against private enforce - ment actions initiated by third parties. This leni - ency programme only applies to “cartel” ie, an agreement or concerted practice between two or more competitors with the objective of imped - ing competition, in violation of Article 101 of the TFEU or Article 6 of the Act. In practice, the programme is not frequently uti - lised, although there are occasional instances where companies take advantage of it, some -
times during an ongoing investigation. To qualify for leniency, a company must provide significant evidence of the cartel’s existence and co-oper - ate fully with the ACM throughout the investiga - tion. The leniency programme is discretionary, with the ACM evaluating each application based on the quality and timeliness of the information provided and the level of cooperation offered by the applicant. The Dutch leniency regime includes a marker process, allowing companies to secure their place in the leniency queue while they gather the necessary information to com - plete their application. 3.2 Amnesty/Immunity Immunity The ACM grants immunity from fines to the first leniency applicant who submits a request for immunity from fines with regard to a cartel, if the application concerns a cartel into which the ACM has not yet launched an investigation and the applicant provides information that enables the ACM to perform a targeted inspection. No immunity will be granted if the applicant has coerced another undertaking into participat - ing in the cartel. Furthermore, the applicant is obliged to co-operate with the authority, which means that the applicant refrains from any action that may impede the investigation or the pro - ceedings until the decision to impose an admin - istrative fine becomes final with respect to all practices involved in the cartel. The applicant is also obliged to provide the ACM with all informa - tion regarding the cartel that they have or may reasonably obtain, of their own accord or at the ACM’s request, as soon as possible, and to ensure that individuals who are working for the applicant and, insofar as is reasonably possible, individuals who have worked for the applicant are available to make statements. The company must cease any involvement in the cartel after submission of the leniency application, unless
241 CHAMBERS.COM
Powered by FlippingBook