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Stek successfully appeals attribution of cartel fine to managing partners

Lawyers:
Ruben Elkerbout
Mattijs Baneke

In a recent interlocutory judgment, the Administrative High Court for Trade and Industry (CBb) has ruled that the Dutch Authority for Consumers and Markets (ACM) could not attribute liability for a cartel infringement to the managing partners of a German partnership (KG), solely on the basis of their position as managing partner. The ACM imposed a cartel fine for the KG’s participation in the Dutch flour cartel not only on the KG, but also on its two managing partners. By its judgment, the CBb has put an end to the ACM’s standard practice for imposing fines on partnerships and their (managing) partners. In the CBb’s view, the ACM could not attribute liability to the two managing partners without demonstrating that, under German law, they had a decisive influence on the KG’s commercial conduct during the infringement. Therefore, the CBb has ordered the ACM to provide sufficient evidence of such decisive influence within a time period of three months or to revoke the attribution of liability to the managing partners. This interlocutory judgment relates to the last two grounds of appeal that are still being litigated between the German flour producer Gebr. Engelke and the ACM in the proceedings relating to the Dutch flour cartel. Stek represents Gebr. Engelke in these proceedings.