In its judgement of 14 May 2013, the Trade and Industry Appeal Tribunal (College van Beroep voor het bedrijfsleven, "CBb") lowered a fine imposed by the predecessor of the Authority Consumer & Markets (Autoriteit Consument & Markt, "ACM") for failure to provide accurate information for the notification of a concentration (LJN: CA3055). According to the CBb, the ACM had not sufficiently taken into account the limited impact of the infringement. The CBb lowered the initial fine from EUR 486,000 to EUR 312,000.
In its appeal before the CBb, the applicant did not dispute the violation. Instead, the appeal focused on the mitigation of the fine, in particular by questioning whether the ACM applied the proper gravity factor in light of the fact that the information was not essential for the notification, that the wrong information was provided accidentally and moreover that the wrong information was quickly corrected.
In accordance with settled case law, the CBb fully reconsidered the amount and the calculation of the fine, thereby checking whether the fine complied with the principle of proportionality as is stipulated in the General Administrative Law Act (Awb) and other principles of sound administration. The CBb first of all rejected the applicant's claim that its failure to provide accurate information had been an accident. It emphasized that the ACM could and should expect a professional party to conduct a thorough investigation after receiving an unambiguous question from the ACM. The CBb however corrected the ACM's assessment of the gravity factor. According to the CBb the ACM had not sufficiently taken into account the limited impact of the applicant's infringement. The CBb therefore held that the gravity factor should be lowered from 1.5 to 1.
This case shows that the true impact of a violation of the obligation to provide correct information may influence the gravity factor.
