The ACM imposed fines on investment firms for cartel participation of a (former) portfolio company

On 30 December 2014, the Netherlands Authority for Consumers and Markets ("ACM") published two decisions (6306_20/216_OV and 6306_20/217_OV) in which it imposed fines of EUR 450,000 and EUR 1.5 million on three investment firms for the involvement of one of their former portfolio companies in an alleged cartel on the Dutch flour market.

The ACM had in 2010 issued a fining decision against 15 undertakings for their involvement in this alleged infringement. Addressees of that initial decision were Meneba Meel B.V, Rotterdam Brielselaan B.V. and Meneba Holding B.V., all part of the Meneba group ("Meneba"). On the basis of complaints by two other addressees of the decision and an advice by the ACM's Advisory Committee in the administrative phase of the proceedings, the ACM reassessed whether it should have attributed Meneba's conduct to the shareholders of Meneba Holding B.V. In the decisions now issued, the ACM concluded that the conduct of Meneba could indeed be attributed to its controlling shareholders on the basis of the parent liability doctrine. This doctrine entails that shareholders can be held liable if they can exercise decisive influence over their shareholdings and de facto do exercise this influence or are assumed to have done so during the period of an infringement.

It should be noted that on the basis of the parental liability doctrine, parent companies can, in principle, be held liable for the same amount as the entities actually participating in an infringement. The fines in the present case are, however, relatively modest due to specific circumstances. The amounts of the fines in this case can partly be explained by the statutory limit of 10% of the turnover in the year preceding the decision. The investment funds had divested Meneba at an earlier stage and therefore Meneba's turnover was not taken into account for the statutory maximum. Without this cap, the investment firms would have been fined EUR 97 million and EUR 135 million according to the decisions.

The decisions confirm that investment firms may be held liable for conduct of their portfolio companies, even in the absence of knowledge of anti-competitive conduct of these entities. Earlier in 2014, the European Commission already fined Goldman Sachs EUR 37.3 million for the alleged involvement of one of its portfolio companies in an infringement on the market for high voltage cables. Commissioner Almunia stated at the time that investment companies have the same responsibility for compliance with competition rules as corporates, and that they should take a careful look at the compliance culture of the companies they invest in. The ACM now makes it clear that it follows this approach.