University of Groningen
Effective public enforcement of cartels
Outhuijse, Annalies
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Publication date: 2019
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Outhuijse, A. (2019). Effective public enforcement of cartels: explaining the high percentages of litigation and successful litigation in the Netherlands. University of Groningen.
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Effective public enforcement of cartels: explaining the high
percentages of litigation and successful litigation in the Netherlands
Annalies Outhuijse
Effective public enforcement of cartels: explaining the high percentages of litigation and successful litigation in the Netherlands
ISBN: 978-94-034-1769-1 (Paperback) ISBN: 978-94-034-1768-4 (Ebook) Copyright © 2019 Annalies Outhuijse
All rights reserved. No part of this thesis may be reproduced, stored or transmitted in any way or by any means without the prior permission of the author, or when applicable, of the publishers of the scientific papers.
Cover design by: Danielle Balk
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Effective public enforcement of cartels:
explaining the high percentages of
litigation and successful litigation
in the Netherlands
PhD thesis
to obtain the degree of PhD at the University of Groningenon the authority of the Rector Magnificus prof. E. Sterken
and in accordance with the decision by the College of Deans. This thesis will be defended in public on
Tuesday 25 June 2019 at 16.15 hours by
Annalies Outhuijse
born on 1 April 1992 in Franeker
Supervisors
Prof. J.H. Jans Prof. H.H.B. Vedder
Assessment committee
Prof. A.T. Marseille Prof. J. Langer Prof. W.P.J. Wils
Contents
Chapter one: Introduction
1. Introduction 10
2. Methodology and plan of approach 12
3. Justification methodological choices 16 4. Relation research to previous research 19
Chapter two: Effective public enforcement of the cartel prohibition in the Netherlands: A comparison of ACM fining decisions, District Court judgments and TIAT judgments
1. Introduction 24
2. Analysis of District Court judgments 25
3. To appeal or not to appeal 28
4. Analysis of TIAT judgments 34
5. Negative externalities of the Dutch public enforcement regime 44 6. Developments influencing judicial review in the Netherlands 46
7. Concluding remarks 48
Chapter three: Effective public enforcement of cartels: Rates of challenged and annulled cartel fines in ten European Member States
1. Introduction 52
2. Relevant literature regarding the European enforcement 55 3. The rates and methodological considerations 58 4. Rates, nature of annulments and developments individual Member States 61 5. Summary and concluding observations 84
Chapter four: The effective public enforcement of the prohibition of anti-competitive agreements: Why do undertakings in the Netherlands appeal?
1. Introduction 92
2. Actors, procedures and percentages 93
3. Explanation of appeal behaviour – the theory 101 4. Explanation of appeal behaviour – the interviews 107 5. Explanation of appeal behaviour – the practice 111
Chapter five: The effective public enforcement of cartels: Perceptions on the functioning of the objection procedure and the reality
1. Introduction 124
2. Introduction to the cartel objection procedure 125 3. The objection procedure in practice – experiences 129 4. The objection procedure in practice – case studies 135 5. The ability of the cartel objection procedure to resolve disputes 141
6. Summary and concluding remarks 144
References 146
Chapter six: The effective public enforcement of the prohibition of anti-competitive agreements: Which factors influence the high percentage of annulments of Dutch cartel fines?
1. Introduction 150
2. Introduction to the Dutch annulments 152
3. Methodology 153
4. Evaluating the factors 157
4.1 Party features 157
4.2 Case features 165
4.3 Law features 171
4.4 Court features 180
5. Summary and concluding remarks 195
Chapter seven: Conclusions
1. Research outcomes 202
2. Implications research outcomes and explorative recommendations 210 3. Relevance of the research outcomes, limitations and possible
follow-up research 220
Annex
Annex I: Nederlandse samenvatting 226
Annex II: Acknowledgments 230
