NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
the Public Prosecutor and electronically stored, such as information gathered through legitimate phone taps, can be exchanged with the ACM to be used in a formal antitrust investigation. Either the ACM can request this information, or the Public Prosecutor can do so ex officio. 4.5 International Inter-Agency Co- Operation The ACM participates in the ECN, in the Euro - pean Competition Authorities (ECA), a collabora - tion between NCAs in the European Economic Area, and in the International Competition Net - work (ICN). The co-operation occurs through: • informing each other of new cases and envis - aged enforcement decisions; • co-ordinating investigations, where neces - sary; • helping each other with investigations; • exchanging evidence and other information; and • discussing various issues of common interest. It is not uncommon for the ACM to co-operate with enforcement agencies in foreign jurisdic - tions. 4.6 Issuing Criminal Indictments Under Dutch law, criminal enforcement of viola - There is no provision in the Dutch competition law system for civil enforcement by the ACM. 4.8 The Role of Experts Economists specialising in the economics of competition are often retained to provide insights into the definition of a market (ie, its scope) or, for instance, into the competition mechanisms of a market in a specific sector. The involvement of tions of the Act is not possible. 4.7 Issuing Civil Complaints
economists may occur at any stage of the pro - cedure. Submitting expert reports when giving a view on the SO forces the ACM to refute the findings of the expert report. 4.9 Possibility of Multiple Proceedings Since the ACM is the sole authority that has the power of public enforcement of the Act, it is not possible to have multiple public enforcement proceedings involving the same or related facts. It is, however, possible that the same or related facts form the basis of civil law proceedings by companies or consumers that claim damages caused by the infringement of the cartel prohibi - tion (private enforcement). Furthermore, where an investigation is subject to both EU and Dutch competition law scruti - ny, after consultation, the Commission has the authority to relieve the ACM of its competence under Article 11 of Regulation 1/2003. 5. Sanctions and Remedies in Criminal Cartel Enforcement 5.1 Imposition of Sanctions/Fines The ACM is empowered to impose sanctions on companies, specifically fines and orders for periodic penalty payments. An order for periodic penalty payments is intended to ensure the swift cessation of an infringement, serving a distinct purpose from that of a fine. Both a fine and an order for periodic penalty payments can be applied to the same infringement. The maximum fine that the ACM may impose per violation of the cartel prohibition is EUR900,000 or 10% of the total (global) annual turnover of the undertaking involved, whichever is higher. The maximum amount also depends on the duration of the cartel, since the aforementioned
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