NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
entered into agreements with other undertakings aimed at distorting competition. Therefore, an ACM penalty decision may result in exclusion from procurement procedures. 5.4 Sanctions and Penalties in Criminal Proceedings Under Dutch law, infringement of competition law is not a criminal offence, so an infringement cannot lead to criminal proceedings. 5.5 History of Criminal Sanctions As infringement of competition law is not a crimi - nal offence under Dutch law, criminal sanctions are not possible. Consequently, there is no his - tory of criminal sanctions in this area. 5.6 Relevance of Effective Compliance Programmes An effective compliance programme does not serve as a mitigating factor when imposing sanctions. However, it can result in reduced fines or immunity, as such a programme is likely to uncover cartel agreements at an early stage, allowing the company to apply for leniency. 5.7 Mandatory Consumer Redress Sanctions imposed by the ACM cannot be extended to mandatory consumer redress or restitution. However, the fact that those harmed by the infringement have been voluntarily compen - sated is a mitigating circumstance in relation to the fine. 5.8 Judicial Review or Appeal Once the ACM has issued a decision, the addressees may file an objection with the ACM itself. In the notice of objection, one may request the ACM’s consent for a direct appeal to the Dis - trict Court of Rotterdam. The objection must be
filed within six weeks of receiving the decision. If the ACM consents to the direct appeal, it will forward the notice of objection and the case file to the court. If the ACM does not consent, it will reconsider its decision after hearing from the objecting company. Following the ACM’s deci - sion on the objection, an appeal can be filed with the District Court of Rotterdam, again within six weeks of the decision on the objection being issued. An appeal against the court’s judgment can be lodged with the Trade and Industries Appeal Tri - bunal. Both the District Court of Rotterdam and the Trade and Industries Appeal Tribunal have full jurisdiction, enabling them to review the ACM’s factual findings, legal assessments and imposed sanctions. 5.9 Timeline of Cartel Enforcement Process A cartel enforcement investigation and proceed - ing can take several years from dawn raids to the conclusion of an appeal. The initial phase, which includes dawn raids, the subsequent investigation by the ACM and the decision, on average can last from two years to five years. If the companies involved decide to appeal the ACM decision, the appeal process can extend the timeline by another two years, depending on the complexity of the case.
6. Civil Litigation 6.1 Private Rights of Action
In the Dutch legal system, both legal entities and individuals have the right to claim damages before the civil courts if they believe they have suffered harm due to a cartel. Claims can be structured as individual claims by one or more claimants against one or more cartel members.
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