De Minimis And Bid Rigging: Tribunal Clarifies Market Share Calculation

According to the Trade and Industry Appeals Tribunal, the ACM was wrong to find that the relevant market should be limited to each individual tender project when applying the national de minimis clause to systematic bid rigging cartels. The Tribunal also corrected the Rotterdam District Court's earlier ruling that for continuous infringements, the five-year limitation period prevents the ACM from taking account of the "time-barred" part of the turnover when calculating the fine. As a result of the Tribunal's ruling, a lengthy bid rigging cartel qualifying as a continuous infringement could be faced with a higher fine. Or, it may benefit from the de minimis clause. All the more reason to keep an eye on market delimitation in the case of bidding markets.