Under a pre-Expedia instruction of the Dutch Supreme Court, the Arnhem Appeals Court applies the appreciability test to an ob…

On 26 March 2013, the Arnhem Appeals Court rendered its judgment in the Batavus case (LJN: BZ5188) , following remand instructions from the Dutch Supreme Court.

Previously, the Leeuwarden Appeals Court held that Batavus had violated Article 6 of the Dutch Competition Act (Mededingingswet, "CA", the equivalent of Article 101 TFEU) and committed an infringement by object. Batavus was found to have coordinated with other distributors to end an agreement with its distributor Vriend because it sold its bicycles online for overly discounted prices.

The Dutch Supreme Court partially affirmed the judgment of the Leeuwarden Appeals Court but annulled its decision that an infringement by object was always appreciable. The Supreme Court remanded the case to the Arnhem Court of Appeals with instructions to assess appreciability.

The present ruling from the Arnhem Appeals Court first recalled the recent European Court of Justice ("ECJ") ruling on the Expedia Case, which was adjudicated after the Dutch Supreme Court remanded the case. In Expedia, the ECJ affirmed that infringements by object that affect interstate trade are by nature and without any regard to the effects, appreciable. The Arnhem Appeals Court pointed to the possibility that the Dutch Supreme Court's judgment in Batavus may be at odds with the recent Expedia case. Although Batavus deals with Dutch and not EU Competition law, legislative history dictates that Dutch competition law should be neither stricter nor more lenient than EU law. In addition Article 6 CA refers explicitly to provisions in Article 101 TFEU.

The Arnhem Appeals Court noted that it is questionable whether the Supreme Court's ruling that under Dutch competition law appreciability is a requirement for object infringements, is in line with the recent Expedia ECJ ruling. Without resolving this question, the Arnhem Appeals Court found that the restriction at issue was in any case appreciable and considered it therefore unnecessary to ask the ECJ preliminary questions on this issue.

The ECJ had ruled in Expedia with regard to EU competition law that infringements by object that may affect trade between Member States are always appreciable restrictions of competition. It remains to be seen whether this means that appreciability has lost its relevance in Dutch competition law for object infringements.