On 14 March 2013, the Dutch Competition Authority ("NMa") published a fining decision after administrative objections in a case concerning an alleged cartel between four producers of insulated glass units (Case 5965). After administrative objections, the fines of two parties were substantially reduced mainly because the NMa, after reconsideration, established that there was insufficient evidence for their involvement in part of the alleged infringement found in the primary decision. The decision confirms that the NMa will need to adduce specific evidence of involvement of all individual parties allegedly involved in an infringement, and cannot solely rely on general statements from leniency applicants.
The case concerns an alleged cartel between four undertakings in the insulated glass market throughout the period 2004-2005. Two of the undertakings, Saint Gobain and AGC, had applied for leniency. On the basis of the leniency statements, the NMa established in its decision of 29 December 2010 that the four undertakings had agreed to increase their prices and had agreed on a minimum price list in two meetings. The other two undertakings, Scheuten and Pilkington, submitted objections against the NMa's findings, arguing that there was insufficient evidence to find an infringement.
After reconsideration, the NMa partly accepts the arguments brought forward by Scheuten and Pilkington and determines that one of the two leniency applicants had not specifically stated that he had discussed prices with representatives of Scheuten and Pilkington at the first meeting. In this context it may have been relevant that the representatives of Scheuten and Pilkington arrived late at the meeting, and that the representative of Scheuten left early. This would be in line with the judgment of the Industry and Trade Appeals Tribunal (College van Beroep voor het bedrijfsleven, "CBb") in the Mobile Operators case (LJN: BC1396), which determined that if the representatives of an undertaking are partly absent in an alleged anticompetitive meeting, the NMa needs to establish at what moment in time the alleged anticompetitive agreement or coordination was discussed.
Regarding the second meeting, the NMa rejects the arguments by Scheuten and Pilkington and confirms that the parties agreed or coordinated price increases and minimum prices. It is interesting to note that the NMa's Advisory Committee came to a different conclusion. The Advisory Committee had advised the NMa to drop the whole case as the leniency statements were "less reliable". Especially one of the leniency statements was not very specific and detailed. Furthermore, the leading questions of the NMa raised questions about the reliability of the statements. Therefore, there was insufficient evidence for an infringement.
