District Court of Rotterdam annuls fines for home care providers for lack of evidence

On 14 March 2013, the District Court of Rotterdam (the "District Court") annulled a decision of the Dutch Competition Authority ("NMa") imposing fines on two Dutch home care providers for participating in an anti-competitive agreement (LJN: BZ4169). In its decision of 21 October 2010, the NMa had found that two home care providers, Carint and Carinova, agreed to refrain from offering their services in each other's geographic areas. For this reason, the NMa imposed fines of € 3.7 and € 1.2 million on Carinova and Carint respectively.

Both home care providers were members of an association of home care providers called Plectrum, which was envisioned to serve as a franchise organisation. The establishment of Plectrum as a franchise organisation was conditional upon an amendment of the Dutch legislation concerning the financing of home care. This amendment never occurred and thus Plectrum became devoid of purpose and now has been dissolved.

During the meetings held by Plectrum, various home care providers discussed the structure of the proposed franchise organisation. During these discussions, the home care providers stated that there would be no competition between the members of Plectrum. The NMa produced various documents as evidence of these discussions and therefore, of an illegal agreement in violation of competition law. Before the District Court of Rotterdam, the home care providers stated that the discussions only concerned a future situation and that the establishment of the franchise organisation was conditional upon a positive review by a competition law expert. Since the agreement never entered into force, they argued that they never had entered into an anti-competitive agreement.

The District Court agreed with the home care providers and found the evidence presented by the NMa insufficient to establish an actual infringement. The District Court considered the home care providers' contentions that the agreement never entered into force to be plausible, since at least one of the home care providers did not feel bound by the alleged non-compete agreement. Therefore, according to the District Court, there could not have been consensus between home care providers that could be qualified as an infringement of Article 6 of the Dutch Competition Act, i.e. the Dutch equivalent of Article 101 TFEU.