Dutch competition authority investigates cartel in bunker industry – five key lessons

The Dutch Authority for Consumers and Markets (ACM) is investigating the bunker industry. ACM confirmed this in a press release dated 12 July 2017. In this blog we offer you five key lessons for companies that are subject to a cartel investigation of the ACM, in order to minimize the negative impact and inconvenience of such an investigation for your business.

Reason for the investigation

ACM launched its investigation into the bunker sector after the Public Prosecution service provided ACM with police information about the bunker sector. The ACM suspects that bunker companies have made illegal price arrangements. The ACM will further investigate the behavior in the bunker sector during the coming period. It is not clear which specific bunker companies are subject to the cartel investigation.

ACM’s investigation is part of its wider approach to target the ports and transport sector. The ports and transport sector has been a (high) priority of ACM’s 2016-2017 agenda. A month ago, ACM sent a letter to 3,500 companies in the ports and transport sector, in which it informed the undertakings about the competition rules. ACM also developed its own Cartel Test for these companies by which they can self-assess whether their behavior may be in violation of the cartel prohibition. Read our blog ‘Dutch competition authority launches ‘Cartel Test for the Port Sector’’ in which we further elaborate on this campaign.

Five key lessons for cartel investigations

ACM noted that it has already conducted several dawn raids in the bunker sector. It cannot be excluded that more dawn raids will follow. ACM may also use its powers to request information from companies and individuals. The following five key lessons are important to take into account when it comes to a cartel investigation.

Next steps bunker investigation and fines

ACM has stressed that the investigation does not necessarily imply that the bunker companies have violated the cartel prohibition. It may take a while before we know whether sanctions will be imposed. If ACM concludes that the competition rules have been violated, it will send a (draft) report (statement of objections) to the companies concerned. The companies will be given the opportunity to respond to the allegations. Afterwards, ACM will decide whether there is sufficient ground to impose fines (or whether the investigation will be ceased). If the investigation results in a fine, appeal proceedings are open for the respective companies.

As concerns the imposition of fines and the amount of fines, please read our blog (in Dutch) on this topic. Fines can be imposed on companies as well as specific individuals, so-called ‘de facto managers’ of the cartel (feitelijk leidinggevende).

Kneppelhout & Korthals’ competition law experts have experience in assisting companies during dawn raids and cartel investigations. Our experts have expertise in the ports and transport sector, including ACM investigations in these industries. Do you need legal assistance during a cartel or in case of any questions in relation to this subject, our experts are happy to assist.

Team members competition and Market Regulation Kneppelhout & Korthals

Esther van Aalst
Eric Janssen
Celine van der Weide
Flip van der Kraan