The Effective Public Enforcement of the Prohibition of Anti-Competitive Agreements: Why Do Undertakings in the Netherlands Appeal?

Abstract

The national competition authorities (NCAs) have an important role in the European enforcement of antitrust cases since 2004 thereby making the success of this enforcement largely dependent on the effectiveness of the NCA’s enforcement. An analysis of the antitrust enforcement practices of different Member States raises doubts as to whether national enforcement is effective in every Member State. The public law enforcement of the prohibition of anti-competitive agreements in the Netherlands is, for example, characterised by the high proportion of fining decisions of the Dutch competition authority which are challenged and annulled in court, which obstructs effective enforcement. The fact that the percentage of decisions appealed is much higher than in many other areas of law in the Netherlands and the fact that not all other Member States experience such high rates of appeal – as will be shown in section 2 – justifies questioning what motivates undertakings in the Netherlands to file an appeal after receiving a cartel fine from the competition authority. This contribution answers this question on the basis of interviews conducted with fourteen lawyers who regularly represented undertakings fined for anti-competitive behaviour in the last fifteen years. Although the answer seems simple, since the fines and the likelihood of successful appeal are high, this research demonstrates that also reasons other than the fining decision itself influence the decision to file an appeal. The article starts with a brief introduction of the actors involved in the enforcement of competition law in the Netherlands, and an overview of litigation statistics for the Netherlands and nine other EU Member States. The interviews and reasons for appeal are then discussed and placed in a theoretical framework. Finally, the data provided by the lawyers is verified by an analysis of recent Dutch cartel cases and conclusions are drawn.