NCAs cooperation: towards optimal solutions when potential extraterritorial application of law is at stake

Tekst gościnny
Dodane przez Tekst gościnny Luty 26, 2018 10:53 Uaktualniony

NCAs cooperation: towards optimal solutions when potential extraterritorial application of law is at stake

I have recently read with pleasure an article on the Kluwer’s competition blog (see a link below). It apparently disseminates good news on the developing cooperation between NCAs in the towage services case. A supposed infringement covered both Dutch and German territory, so the proceedings were consequently initiated by Bundeskartellamt and Autoriteit Consument & Markt. Eventually solely BKa issued an infringement decision imposing pecuniary sanctions whereas ACM forsook further investigation. Prima facie it recalls para. 12 from Commission Notice on cooperation within the Network of Competition Authorities and – at first blush – it may be seen as an epitome of the cases where parallel action by two NCAs is appropriate due to the exerted substantial effects on competition in their respective territories.

Nevertheless it may be perceived in alternative frames. As it was mentioned anticompetitive effects (supposedly) materialised in two countries’ territories. Taking into account press releases available on the NCAs websites (see below) it cannot be inferred that the whole geographical market (NL + DE) has been captured by the BKa decision. Indeed an opposite conclusion should be drawn instead. President Mundt admitted that: „Our investigations have shown that at least between 2002 and 2013 the harbour towage companies divided orders and turnover earned from several German harbours among themselves”. Hence he indicated the extent that exclusively German harbours were analysed whilst not a single word mentions the Dutch ones. What is more, a spiritus movens for the collaboration was rested on the fact that some cartelists were Dutch undertakings – accordingly to the BKa press release: „As Dutch companies were also involved in the cartel, the Bundeskartellamt cooperated closely with the Netherlands Authority for Consumers and Markets in this case”. Alike the BKa’s press release mentions „small geographical market” what may in addition be considered as a hint that the Netherlands territory was not included. Moreover it was stated in the article that the cartel agreements regarded „various ports in Germany and the Netherlands”. In the same vein the ACM press release informs about investigations in Rotterdam and Hamburg („In verschillende Nederlandse en Duitse media is vanaf eind 2014 aandacht geweest voor de onderzoeken in de havens van Rotterdam en Hamburg”). Unfortunately the BKa decision is not available to confirm definitely presented course of considerations. All three sources are seemingly sufficient though, although a criterion of effect on interstate trade is conjectured to be have been fulfilled as a prerequisite for EU law application.

In consequence the cooperation appears to be not that successful. What is undoubtedly deducted from all sources is the anticompetitive delict in Germany. Thus the big ask is – how about anticompetitive concerns in the Netherlands? The press release published by the Dutch agency clarifies that better BKa’s evidentiary materials and arrangements prompted the termination of its own proceedings („Tijdens het onderzoek bleek dat het Bundeskartellamt de beste papieren had om op te treden tegen het kartel. De schikkingen vormen voor de ACM aanleiding om het onderzoek naar de sleepsector stop te zetten.”). It does not either amount to the conclusion that there might have been no infringement in the NL or BKa’s decision embrace the misconduct in the NL. Apparently the anticompetitive effects in the NL were not finally covered by the BKa’s decision. Therefore this example of collaboration cannot be deemed a touchstone. First ones who could suffer from such NCAs modus operandi may be victims of the cartel in the NL, devoid of binding effect of the infringement decision since it was adopted in other jurisdiction. Even if the whole case corresponds to higher degree with para. 11 of the Notice, the German authority did not apply extraterritorially competition rules in spite of competences to do so what left anticompetitive issue in the NL untouched. Likewise granted that only national competition norms have been applied by BKa due to a lack of interstate trade impact, still further intervention with regard to the Netherlands territory may be missing.

This concise analysis proves that there are several answers expedient to elucidate intricacies of the EU competition system for which we still have to wait.

Author: Dr Kamil Dobosz

Online sources:

Towage services cartel: a new chapter in the collaboration between competition authorities?

https://www.acm.nl/nl/publicaties/samenwerking-bundeskartellamt-en-acm-leidt-tot-schikkingen-sleepsector

http://www.bundeskartellamt.de/SharedDocs/Meldung/EN/Pressemitteilungen/2017/18_12_2017_Hafenschlepper.html?nn=3591568

Tekst gościnny
Dodane przez Tekst gościnny Luty 26, 2018 10:53 Uaktualniony
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