From theory to practice
Jacob de Wildt – Court of Rotterdam
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The Dutch Judicial System
Competition Law in the Court of Rotterdam (and the Netherlands)
Specialization/education
Co-operation (national and international)
Some (best?) practices
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Case management
Confidentiality
Naming and shaming
Experts
Mergers
Abuse of dominance
Cartels
The T-Mobile case
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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The Dutch Judicial System
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Civil, Criminal and Tax Law
Supreme
Court
Courts of
Appeal (4)
Courts (11)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Social Security Law
(Supreme
Court)
Central Court
of Appeal (1)
Courts (11)
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Economic and Financial Law
In grey: competition and telecommunications law
and other regulated markets
Administrative High
Court for Trade and
Industry
(only) Court of Rotterdam
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Other administrative law
Council of
State
↑↑↑↑↑↑↑↑↑↑↑
Courts (11)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Court of Rotterdam
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Court of Rotterdam
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
The Rotterdam competition and
telecommunications Chamber
1 chairman judge (supervisor)
5 judges
about 8 deputy judges (scientists, judges other courts)
5 référendaires (legal staff)
(judges, chairman and référendaires are in principle for at least five
years member of the chamber)
(about 15-35% of the workload of the judges and référendaires;
decisions on the Competition Law Act about 5-10%)
Hearing and judgement:
Chairman (or substitute)
Judge and
Deputy Judge,
assisted by a référendaire
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Education in competition law
Three days course (Judges Training Centre SSR)
Permanent education
- Two expert meetings (organized by the Court) a year
(experts = the chamber + judges other courts + deputy
judges like scientists; about 25 – 30 persons)
- Competition Law Newsletter of the Court (EU and Dutch
case law)
- Law magazines (Dutch and English)
- Seminars on competition law
- AECLJ (annual meeting)
- 6 lunch meetings a year of the Rotterdam chamber
(discussing cases, case law, etc.; only Rotterdam
members)
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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(the need for) Specialization
Research Radboud University of Nijmegen on specialized courts
(including the CT chamber of Rotterdam) in the Netherlands
Conclusions (about the specialized courts):
- Good quality
- Specialized courts on specialistic cases are advisable or even
necessary;
- Warning about internal movement (within the Court) of
judges.
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Civil law
No specialized Courts
Education available (like 3-days course, expert meetings)
Judges pool (only on paper); some Courts of Appeal: ad-hoc cooperation
Court of Rotterdam: in civil chamber assistance
of administrative competition law judges
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Co-operation
Expertise Centre Court of Rotterdam
Expert meetings and ad hoc contacts between experts
(Some) exchange of judges
AECLJ (annual conference; annual meeting with Commission)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Some (best?) practices
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Case management
- Chairman and planner set date for hearing
- “Get together” chairman and référendaire about preparation;
instructions for the hearing and possible questions by letter
(to be answered before the hearing).
- Sometimes (in big, very complex, “fuzzy”, or many claimantscases): case management hearing (with agenda and possibility
to amend the agenda).
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Confidentiality
The (official) procedure in Dutch administrative law
A judge will decide on a claim of confidentiality before the
hearing (rarely hearing about confidentiality)
Most claims of CA.
• If accepted, claimant is asked to agree that only the Court (and
CA) will have access to confidential material.
• When the claimant refuses to agree, the Court won’t have access,
but will, if necessary, in general follow the CA’s opinion about the
content of the confident material (merger Vodafone
KPN/Reggefiber)
• If the confidentiality claim had been rejected by the judge, CA
must choose between withdrawing the claim or failing to
deliver the material (f.i. “flower cartel” Adm. High Court of
Trade and Industry)
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Confidentiality
Other possibilities:
Confidentiality Ring (see UK, f.i. Competition Appeal Tribunal,
http://www.catribunal.org.uk/)
Data Room (European Commission):
DG COMPETITION
“Best Practices on the disclosure of information in data rooms in
proceedings under Articles 101 and 102 TFEU and under the EU
Merger Regulation”
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Confidentiality
Civil law
Confidentiality order of the judge (to parties, lawyers and third
parties)
Possibility to set a penalty on breach of confidentiality.
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Confidentiality
Two (practical) examples:
Vodafone case (auction 4G) (after hearing about confidentiality
only)
Double glazing cartel (access to leniency statements in related
markets)
In general: confidentiality ring if there is any dispute about the
question whether some (confidential) files are relevant to the
case
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
“Naming and Shaming”
CA wants (and is bound by law) to publish
all relevant decisions
Claimant is allowed to ask for an interim measure (temporal probihition of
publication)
 Judge will give a provisional judgement about the decision (which is, f.i.
a fine for being a cartel member). When the judge can detect no
infringement, or is in doubt: interim measure until the case is decided
by a panel. Otherwise: no interim measure
 Also quite often: settlement as suggested by the judge (f.i. voluntary
suspension by the CA)
Interim measure: probibition of publication of those parts of the decisions
that can lead to the identity op of claimant;
if necessary: no publication at all
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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“Naming and Shaming”
Example
Cartel in auctions of real estate.
(“understanding” between traders not
understood by the claimant)
→Publishing the claimant’s name was suspended
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Experts
The (court) expert?
Who is he/she?
Expertise, qualifications
Able to give expert witness in court
Transparancy (comprehensible, auditable)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Experts
Be aware of:
• Private (or party-)opinions (ask what the common opinion is);
• There may be different methods; and none of them is the best (if
the CA makes a reasonable choice between them, let them)
• There is no “hard” truth in economics (economists differ a lot in
opinions)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Experts
In Dutch Criminal Law: NRGD
NRGD = Netherlands Register of Court Experts
The NRGD monitors forensic quality by assessing experts on the
basis of the standards determined in collaboration with the field
in question, and by repeating this assessment every four years
on the basis of the standards applicable at the time.
An evaluation of the written material of the application takes
place. The Advisory Committee (two other experts plus judge or
prosecutor) assesses the documents on the basis of the
registration requirements as stated in the Standards document
pertaining to the field of expertise.
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Experts
Examples:
NUON-Reliant
(Merger electricity market)
Econometric model (what about the facts the model was based on;
black box).
PostNL
(regulated post market)
Accountancy (validating, estimating, calculating and allocating)
[4G-auction: the pleading expert]
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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Mergers
Experts: Nuon-Reliant
Confidentiality: Vodafone – KPN/Reggefiber
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Abuse of dominance
Most claims on abuse of dominance fail
(hard to prove)
Obstacles: market definition; sufficient research of the functioning and
structure of the market or markets in question; market power; abuse?
Judiciary inquiries may stop:
* when behaviour can’t be qualified as abuse in all possible scenarios
* when there will be no market power, unregarded the market
definition
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
Cartels
Case management hearings
Confidentiality rings
Experts (expert opinions can be also relevant to setting fines, f.i. TMobile-case)
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
T-Mobile (in short)
Lots of issues:
The facts (terminating subsidies retailers; end of battle of gaining users;
market shares settled):
Court of Justice 4 June 2009; ECLI:EU:C:2009:343
 Exchange anti-competitive if the exchange is capable of removing
uncertainties concerning the intended conduct
 apply the presumption of a causal connection established in the Court’s
case-law
 as the undertaking participating in the concerted action remains active on
the market in question, there is a presumption of a causal connection
between the concerted practice and the conduct of the undertaking on
that market, even if the concerted action is the result of a meeting held by
the participating undertakings on a single occasion.
From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
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T-Mobile (in short)
Dutch issues:
• Five, four or three infringers?
• Setting fines (expert opinion)
“Exchange could be considered as some (extra) management of
market behaviour to be expected”
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From theory to practice: experiences from the Netherlands
Jacob de Wildt - Court of Rotterdam
дякую
До побачення!
From theory to practice:
experiences from the Netherlands
Jacob de Wildt - Court of
Rotterdam
The End
Any Questions?
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