On 3 April 2014, the District Court of Rotterdam (the Court) annulled a decision of the Dutch Competition Authority (ACM) imposing fines on a number of undertakings for their alleged participation in a cartel in the double-glazing market. Two of the undertakings concerned had sought annulment of the decision due to a violation of their rights of defence and the absence of a sufficient evidential basis for the decision.
In 2010, the ACM fined the participants in a cartel in the double-glazing sector a total of € 17.7 million. The ACM found that the producers concerned had been involved in fixing minimum prices and agreeing on price increases of 10% to 12% from 18 May 2004 until 15 September 2005. Following an administrative procedure in 2012, the ACM revised its decision and fined the two appellants € 1.6 million and € 4.1 million respectively.
In their appeal before the Court against the revised decision, the companies argued first that the ACM had violated their rights of defence by not granting them full access to the case file, especially to statements made by the leniency applicants concerning potential anti-competitive behaviour in different periods and in different markets. Secondly, the appellants argued that the oral statements of the two leniency applicants were unreliable and were not sufficient to prove the infringement. As a result, they argued that the ACM should have adduced additional evidence.
The ACM was of the opinion that it had discretion in relation to the selection of documents that it deemed relevant for the case and that the documents which the applicants wished to inspect were irrelevant for the case concerned. With regard to the evidentiary value of the leniency applicants' oral statements, the ACM asserted that these statements were made voluntarily, on the leniency applicants' initiative and in presence of their lawyers. Moreover, the ACM's line of questioning could not lead to the conclusion that the statements were unreliable or incorrect.
In its recent judgment, the Court agreed with the appellants and held that ACM should have included the statements in relation to other possible infringements in the case file, as these might have shed light on the credibility of the leniency applicants' statements in the case under appeal. In relation to the statements' evidentiary value, the Court ruled that their degree of reliability required express and precise substantiation by additional evidence, as the statements differed considerably as to the time and context in which the anti-competitive agreements were made. As the ACM had failed to adduce such additional evidence, the Court found that it did not have a sufficient evidentiary basis. Consequently, the Court annulled the ACM's decision with respect to the two appellants.
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