European Court Ruled Dutch Operators Colluded on Sales Commissions

The European Court of Justice has ruled that a single meeting can be used to presume that an illegal cartel exists between companies, and that local regulators are able to apply fines when that occurs. The ruling comes from an incident in 2001, when the five Dutch mobile network operators are accused of colluding to lower commissions paid their retailers.

At that time, five operators in the Netherlands had their own mobile telephone network, namely Ben Nederland (now T-Mobile), KPN Dutchtone (now Orange), Libertel-Vodafone and Telfort Mobile (subsequently O2 and now again, Telfort). In 2001, the market share held by the five operators amounted, respectively, to 10.6%, 42.1%, 9.7%, 26.1% and 11.4%.

The Court found that on 13th June 2001, representatives of the five network operators held a meeting, where they discussed, inter alia, the reduction of standard dealer remunerations for postpaid subscriptions, which was to take effect on or about 1 September 2001. As is evident from the order for reference, confidential information came up in discussions between the participants at the meeting.

At the end of 2002, the Netherlands Competition Authority (NMa) fined the five companies for their collusion, although they then appealed the decision.

In 2004, the NMa agreed with part of the appeal, and reduced the fine - but the operators continued to appeal and in July 2006, the Rotterdam District Court ordered the NMa to adopt a new decision. The NMa counter appealed to College van Beroep voor het bedrijfsleven, which in turn passed the case up to the European Court.

The Court has now ruled that a case of collusion can indeed be found, "even if the concerted action is the result of a meeting held by the participating undertakings on a single occasion." The decision has been sent back to the local court for a final decision.

Posted to the site on 4th June 2009