NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
document this in a simplified resolution submis - sion. The company is no longer bound by its submission if the ACM decides to halt the sim - plified procedure. Companies can also withdraw from this procedure and follow the standard pro - cedure until the ACM approves the statement. However, a company must have already stopped the violation to qualify for this procedure. The ACM can suggest at any moment that the case is suitable for simplified resolution, but the companies involved can also independently approach the ACM. There is no fixed time for initiating this simplified procedure, although this is unlikely if the ACM’s decision-making process is already at an advanced stage. The more com - panies that want to participate in the simplified resolution, the more likely it is that the ACM will opt for a simplified resolution. The ACM insists that a simplified resolution must offer significant efficiency benefits. Consequently, this procedure will result in a considerably shortened decision, which is less comprehensive than in regular pro - cedures. Just like in the regular procedure, this decision will be published on the ACM’s website. A company wishing to participate in the simpli - fied procedure must also sign a confidentiality agreement. It commits to handling information from the simplified procedure discussions and information exchanged with the ACM confiden - tially. It cannot share this information with third parties (including other companies involved in the same procedure) without prior ACM approval. The ACM holds separate discussions with each company involved. Parties can have a represent - ative present during discussions with the ACM, such as a lawyer. During these discussions, the ACM presents the violation and the proposed fine to the companie, involveds, which can then respond. To expedite the procedure, the ACM
sets short response deadlines for parties and can limit the length of written documents. The ACM keeps a separate file for all simplified procedure correspondence. If the simplified pro - cedure is terminated, the involved company’s aforementioned recognition also becomes void. The ACM will not use information from this com - pany against it. If this company wishes to use certain documents and positions, it can intro - duce them in the standard procedure. Furthermore, the Act provides a procedure according to which the ACM may decide to refrain from further investigation and sanctions if the companies involved in the investigation pledge in writing to refrain from certain behav - iour, enabling the ACM to adopt a commitment decision (comparable to a commitment decision under Article 9 of EU Regulation 1/2003). The ACM has the discretion to refuse a pledge if it intends to impose a fine. Normally it will refuse a pledge in the case of hardcore cartels or when the pledge has been made when the investiga - tion has nearly been completed. 5.3 Effect of Liability Being Established A penalty decision by the ACM, against which no further appeal is possible, serves as com - pelling evidence in civil proceedings related to private damages actions, underscoring its sig - nificance for follow-on damages claims. Addi - tionally, under Article 2.87 of the Dutch Public Procurement Act 2012, which implements EU Directive 2014/24 on public procurement, con - tracting authorities may exclude undertakings from procurement procedures if they can dem - onstrate, through appropriate means, that the undertaking is guilty of grave professional mis - conduct, thereby questioning its integrity or if the contracting authority has sufficient plausible indications to conclude that the undertaking has
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