Dutch competition authority launches ‘Cartel Test for the Port Sector’

On 16 May 2017, the Dutch Authority for Consumers and Markets (ACM) issues a press release stating that it had sent 3,500 Dutch port businesses a letter and a flyer containing information on the competition rules. In addition, the ACM launched the so-called ‘Cartel Test for the Port Sector’ (in Dutch). With this online tool businesses in the ports and transport sector can check (anonymously) whether they run a (high or low) risk of violating competition law. In response to ACM’s campaign, Kneppelhout & Korthals will organize a Round Table during which the Cartel Test will be discussed.

The ACM and the port industry

One year ago the ACM put the ports and transport sector on its 2016-2017 Agenda. This did not remain unnoticed as employees of the ACM subsequently visited over 6,500 LinkedIn-profiles of people who were working in the ports and transport sector. With this campaign the ACM tried to raise 'awareness' for the competition rules in the port and transport sector.

Recent research conducted on behalf of ACM has shown that the knowledge on competition rules within the port and transport sector is insufficient. For this reason, the ACM launched this new campaign including the Cartel Test, almost one year after the LinkedIn-campaign. The purpose is clearly to draw the port businesses’ attention once again to the boundaries set by the competition rules, for example concerning arrangements with competitors, suppliers, and buyers.

High fines and consequences of infringement competition rules  

The obvious underlying purpose of the ACM is to ensure that companies comply with the rules of competition law. For that reason, the ACM is providing an explanation of the competition rules and puts its energy into educating businesses in this respect. The ACM also points out however that enforcement action will be taken if the competition rules are violated.

A violation of the competition rules can result in severe fines. At this moment a company can risk a fine up to a maximum of 40% of their annual turnover in case if a cartel infringement. Where a party has been fined before, a fine can even be doubled. Please find here our previous blog ‘Dutch fines more than doubled as of 2017’. Furthermore, victims of cartel infringements can claim damages. In addition, banks can end credit relationships and governments can exclude infringers from tender procedures. It will be no surprise that an infringement of the competition rules can also lead to significant reputational damage. 

No business is looking forward to an investigating visit (dawn raid) by the ACM. A dawn raid can have a large impact on the day-to-day business and can be very costly. It is important to engage expert assistance in such process and costs will only run up if the ACM decides to further investigate or take enforcement actions.

Anonymity Cartel Test for the Port Sector

The ACM explains that the cartel test can be done anonymously: “The results of the test will never be made known to the ACM. This includes your name, your IP-address and other information that could trace back to you or your company.” Unfortunately, the ACM does not explain how it will guarantee anonymity, which may raise questions. It is unclear what will happen to the test results and whether these will be used at all.

If you are interested in participating in a Round Table session during which the competition rules in the ports and transport sector are discussed, please contact one of our specialists.

Our specialists will be glad to answer any questions you may have about this topic. You can find our contact details on the right side.

Competition & Market Regulation team of Kneppelhout & Korthals

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