ACM publishes fining decisions in a cartel between real estate traders

On 12 September 2013, the Authority for Consumers and Markets ("ACM") published non-confidential versions of its decisions by which it fined 79 real estate traders for participating in a cartel on the market for the sale of houses under execution.

The ACM started its investigation in October 2009 after it had received information from the Dutch tax authority which, after a fiscal investigation, suspected that real estate traders active on the market for the sale of houses under execution were acting in violation of Dutch competition law. An earlier investigation into the sector in 2006 by the ACM did not lead to any fines as the ACM had not found any proof of anticompetitive conduct. The ACM now has established that between June 2000 and December 2009, a total of 83 real estate traders participated in a single, complex and continuous infringement by aligning their bidding behaviour on numerous sales of houses under execution with the objective to keep the auction price for houses as low as possible in violation of Article 6(1) of the Dutch Competition Act. After a house was purchased at a low price by one of the real estate traders at the official auction, the real estate traders organized a secret auction amongst themselves at which the house was sold at a higher price. The winner of the secret auction would then compensate the other participants.

Because of the large number of participants in the cartel, the ACM divided them into three groups, based on their participation in the number of "affected" transactions. The first group was fined for its participation on 13 December 2011, while the second and third group were fined on 7 January 2013.

One of the real estate traders that was fined by the ACM had requested the interim relief judge of the District Court of Rotterdam to prohibit the ACM from publishing a non-confidential version of the decision that contained his name while the decision had not yet become final. The interim relief judge held that the real estate trader could be disproportionately harmed by publication of his name if the fining decision would subsequently be annulled. In order to establish whether this risk could manifest itself, the interim relief judge preliminary assessed the lawfulness of the fining decisions. The interim relief judge did not find any grounds for doubting the lawfulness of the fining decisions and therefore rejected the real estate trader's request for a preliminary injunction on 1 August 2013. Various real estate traders that were fined in the first group have appealed the ACM's decisions before the District Court of Rotterdam, while the real estate traders from the second and third group still await the outcome of their administrative appeal before the ACM.