European Union: The Dutch Beer Cartel Decision: A Shot In The Arm Of Private Enforcement In The Netherlands?

Last Updated: 2 June 2008
Article by Wilko Van Weert and Dr. Gordon Christian

Originally published in Competition Law Insight , July 2007.

For many years, one of the most important trends in competition law enforcement worldwide has been the increasing focus of competition authorities on the detection and punishment of cartels, often at the expense of investigating competition complaints from companies or individuals. The reason for this is summed up neatly by a recent comment made by Thomas Barnett, assistant attorney general in charge of the US Department of Justice's Antitrust Division, in connection with the alleged marine hoses cartel, where he described illegal cartels as the "supreme evil of antitrust".

It is clear that this continuing strong focus on cartel enforcement in Europe, which applies both at the EU and national level, is going to provide ample opportunities for cartel victims to seek compensation from cartelists on the basis of follow-on damages actions, where claimants only need to prove quantum, rather than also proving liability and causation. However, because most cartel damages actions are usually settled before they come to court, over the last few years there has been something of a disconnect between (on the one hand) increasingly large cartel fines and (on the other) a mere trickle of cartel damages actions actually being conducted in open court.

Accelerating Private Enforcement

However, the authors believe that there are a number of features which will probably accelerate private enforcement in Europe. First, the European Commission's new fining guidelines (2006) are likely to lead to significantly higher fines for cartel conduct, and the publicity which these fines will attract are likely to increase the willingness of cartel victims to sue for damages.

Secondly, it is expected that the Commission will publish a white paper on private enforcement towards the end of this year. The white paper will build on the Commission's green paper (published at the end of 2005) and responses received during the course of the public consultation that followed. The clear aim of the Commission's white paper will be to propose amendments to the current damages action regime in order to remove some of its current weaknesses.

Thirdly, national competition authorities are also doing a considerable amount of work to encourage private enforcement a good example is the OFT's recent paper on the subject, which suggested that new forms of representative action and easier settlement mechanisms should be introduced to facilitate private enforcement. Yet, it is only with the emergence of follow-on damages actions in Europe as the standard riposte to cartel decisions by the European Commission or national competition authorities that one will be able to argue that public and private enforcement of competition law in Europe work effectively and in a complementary manner.

Against this background, we now turn to the European Commission's latest cartel decision in the beer sector and related private enforcement activities in the Netherlands.

The Commission's Beer Cartel Decisions

The European Commission's decision to fine the Dutch brewers Heineken, Grolsch and Bavaria a total of nearly €274m for an illegal cartel (which primarily involved price-fixing and customer allocation) is the latest in a string of beer cartel decisions imposed in a number of other member states.

Beer Cartels In Belgium, Luxembourg And France

In 2001, the Commission fined a number of brewers more than €91m for participating in two separate beer cartels in Belgium. Interbrew and Alken-Maes were fined more than €46m and €44m respectively for a cartel involving price-fixing, market sharing and information exchange in the "horeca" sector (the Dutch collective expression for hotels, restaurants and cafés) and in the retail sector. The second cartel concerned private label beers sold in Belgium, and, in addition to the two brewers identified above, the small brewers Haacht and Martens were also found to be involved.

Although the Commission does not have a formal "leniency-plus" regime in place a commonly criticised lacuna in the EC leniency regime Interbrew (known as InBev since its merger with AmBev in 2004) was spurred by the Commission's investigations preceding the 2001 Belgian beer cartel decision into revealing its participation in a number of other national beer cartels. The result was the imposition of nearly €0.5m in fines on three small Luxembourg brewers for a market-sharing cartel. Further European Commission investigations also unearthed a cartel in the French beer market, leading to a fine of €2.5m on Heineken and Danone for an "armistice agreement" designed to share the French horeca beer market on an "equitable basis".

Beer Cartel In The Netherlands

Given this background, it is not surprising that the European Commission has come down hard on a cartel in the Dutch beer market which the Commission has been investigating since InBev provided it with evidence (in the context of a leniency application) in 1999/2000.

As the European Commission sets out in its press release, its investigation found evidence that InBev, Heineken, Grolsch and Bavaria were guilty of price-fixing, customer allocation and the co-ordination of rebates and other trading conditions. As a result, Heineken, Grolsch and Bavaria were fined a total of nearly €274m, and InBev received full immunity in accordance with the Commission's leniency policy. The Dutch beer cartel covered both the "on-trade" (ie horeca) as well as the "off-trade" (ie retail) sides of the market, and the cartel also included the brewers' private label activities in the Netherlands. The Commission found various types of incriminating evidence, including handwritten notes that documented the price rises agreed at the cartel meetings. Based on the duration of the cartel (from 1996-99), the size of the Dutch beer market (one of the largest in Europe) and the considerable size of most of the firms involved (particularly Heineken), the Commission felt justified in imposing a fine on Heineken that ranks in the top 10 largest financial penalties ever imposed by the European Commission on a single company for a cartel infringement. In addition, the fine imposed in the Dutch beer cartel means that, looked at cumulatively, the Commission has, by the fourth month of 2007, already exceeded the total amount of cartel fines imposed in 2006, namely €1.8bn.

Given the proliferation of statements of objections sent by the Commission this year (relating to, among others, the alleged professional video tape cartel, 20 March 2007; the alleged bulk liquid shipping cartel, 11 April 2007; and the alleged chloroprene rubber cartel, 8 May 2007), it is likely that the total fines figure will rise significantly. This is largely because (at least in relation to the three cartels mentioned above) the new EC fining guidelines will be applied, and these provide for potentially much larger fines than has been the case to date.

There are several interesting aspects of the Dutch beer cartel decision. First of all, the competition commissioner Neelie Kroes highlighted the fact that, in this case, the cartel behaviour was co-ordinated and actively managed by senior management at the brewers in question, including board members, managing directors and national sales managers. (This is in contrast to other cases where such conduct has been confined to a small number of junior staff.). Furthermore, the brewers' use of code words and their tendency to meet in public places suggests both knowledge that the practices were illegal and that attempts were made to cover up what they were doing.

This observation is particularly significant given that a reform of Dutch competition law (which the authors understand is currently going through the lower house of the Dutch parliament) is likely to introduce criminal liability for individuals involved in serious anticompetitive activities. Interestingly, even when specifically questioned by the press, InBev declined to comment on whether its chief executive had attended the cartel meetings.

Secondly, the European Commission acknowledges (rightly, in the authors' opinion) that an administrative procedure of more than seven years since the dawn raids took place was "unduly long". The Commission has therefore allowed Heineken, Grolsch and Bavaria (the three Dutch beer cartelists) what appears to be a rather random reduction of €100,000 to compensate for the excessive procedure. It will be interesting to see whether the Commission provides more detailed reasoning for the size of the reduction when the full decision about the Dutch beer cartel is published in due course. In any event, given the amount of the fines (€22m being the lowest fine imposed), the reduction is striking for its triviality in the overall context of the case.

Heineken, Grolsch and Bavaria have all announced their intention to appeal the Commission's decision to the Court of First Instance in Luxembourg. Heineken has called its fine "excessive and unjustified"; Grolsch said that it was "stunned by the ruling"; and Bavaria believes it has always operated as a price-fighter and is being unjustly punished.

Private Enforcement In The Netherlands

There is no specific statutory basis for competition-related damages claims in the Netherlands. Cases are brought on the basis of provisions in the Dutch Civil Code which provide that natural or legal persons committing tortious acts for which they are responsible must compensate the victim for any damage suffered (see article 162, Book 6 of the Dutch Civil Code).

Since damages under Dutch law have the object of compensating only the loss actually incurred by the claimant, no punitive or exemplary damages are available.

In principle, the civil court has a number of methods available for the assessment of damage and concerning the method of compensation. If the loss cannot be established accurately, it may be "constructed" or even estimated. This freedom of assessment will be important in the event of any claim against the beer brewers, given the multitude of relatively small claimants.

In addition, and importantly from the point of view of the European Commission's decision in the Dutch beer cartel case, a 2004 amendment to the Dutch Civil Procedure Act now explicitly recognises that EC competition law breaches can be litigated before the Dutch civil courts.

There are a number of differences between competition litigation in the UK and in the Netherlands. First, there is no specialised competition law court in the Netherlands on the lines of the Competition Appeal Tribunal in the UK. Although the Rotterdam District Court is widely recognised as a centre of expertise for competition law issues mainly as a result of its competence as an appeals court against decisions from the NMa (the Dutch competition authority) in civil matters it is a court like any other, with no specific jurisdiction attributed to it. Secondly, Dutch procedural law does not provide for pre-trial disclosure and, thirdly, there are no US-style class actions.

However, there have been certain recent developments that may give rise to collective damages actions for consumers. In addition, it is interesting to note that the Netherlands has pioneered a system of arbitration of competition law disputes something that was particularly evident recently in a huge construction fraud case that involved hundreds of construction companies and thousands of damages actions by regional and local authorities.

The significant publicity of the Dutch beer cartel decision has already led to the Royal Horeca Netherlands organisation (RHN) threatening the brewers with a claim for (what are described as) "substantial" damages and a demand for lower beer wholesale prices. Whether or not the RHN will go ahead with its claims may depend on several factors, including the outcome of an appeal by the brewers. However, given the high profile of the case and the public discussion it has generated about compensation for loss caused by a cartel, it is likely that the Commission's decision will boost private enforcement in the Netherlands. Such a development is likely to be welcomed both by the Commission and by the NMa, as both institutions have made significant efforts in the last couple of years to encourage cartel victims to seek compensation from cartelists.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.