NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
maximum can be multiplied by the number of years the violation has lasted (with a minimum of one and a maximum of four years). In the case of repeat violations, this fine can even be doubled. As under the EU competition law regime, a par - ent company can (and will) be held liable for a fine imposed on its subsidiary. It is for the par - ent company to demonstrate that it does not or did not exercise a decisive influence over the behaviour of the subsidiary. Moreover, the high - est administrative court in the Netherlands with respect to penalty decisions of the ACM has ruled that the ACM may hold an investment firm liable for a cartel infringement committed by one of its portfolio companies, if it exercised decisive influence over that portfolio company. Decisive influence may result from a combination of cir - cumstances, such as percentage of shares, par - ticipation in the appointment of the company’s management and supervisory bodies, notes, etc. This does not apply to purely financial investors. In this particular case, the investment firm was fined separately instead of jointly and severally, as is normally the case regarding parent compa - nies and their subsidiaries. This was due to the specific circumstances of the case. The ACM may also impose fines on individu - als, up to a maximum of EUR900,000. Such a fine may be doubled if the individual committed a similar infringement within the previous five years. The level of fines that the ACM may impose must be determined in accordance with the rules set out in the 2014 Policy Rules of the Minister of Economic Affairs on the imposition of admin - istrative fines by the ACM. These rules provide detailed guidance on how the ACM may exer - cise its authority to impose administrative fines, within the boundaries of the law. The ACM sets a
basic fine of between 0% and 50% of an under - taking’s relevant turnover, depending on the seriousness of the violation, the circumstances in which it was committed and its duration. The relevant turnover is the one in the last full year in which the company committed the violation, multiplied by a factor of 1/12 for each month that the violation lasted. The ACM may impose a sanction directly, but there is a separation (Chinese wall) between the ACM department that carries out investigations and prepares the SO, and the department that decides whether a sanction should be imposed. After an investigation has resulted in an SO by the Competition department, the case will be handed over to the Legal department of the ACM, which is not independent but part of the ACM organisation. The Legal department must hear parties on the SO. Parties are entitled to respond to the SO at least in writing and are normally also allowed to respond orally. The oral hearing will take place in front of a hear - ing committee composed of officials of the legal department of the ACM. The legal department will consider the case and draft a proposal for a decision to be taken by the Board of the ACM. 5.2 Plea Bargaining/Settlement In 2018, the ACM introduced the “ACM’s guide- lines for simplified resolution of cases involving a fine” . If the ACM finds a violation and deems the case eligible for a simplified resolution, the companies involved can benefit from a 10% fine reduction. This reduction can be additional to other reductions, such as those from leniency. For a simplified resolution, the involved compa - nies must acknowledge the violation, confirm that sufficient access to the file has been pro - vided, and that there has been sufficient oppor - tunity to be heard. The company must agree with the results of its discussions with the ACM and
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