In 2011 and 2013, the Consumer and Market Authority (ACM) imposed fines on a large number of house traders for price-fixing at foreclosure auctions. According to the ACM, these agreements had resulted in insufficient returns for homes that often had to be sold by necessity at those auctions. In 2017, the fining decisions were overturned by the Highest Court and the ACM reached a settlement with the house traders. Subsequently, some traders applied for additional compensation for damages that they claimed exceeded the compensation that they already had received. The District Court and the Court of Appeal rejected these claims, as these damages could not reasonably be attributed to the ACM as a consequence of the earlier fining decisions.
In this blog, we go back to basics, because what about the right to compensation when fining decisions are revoked?
Causal link
In case a court revokes a fining decision by the ACM, but also by other authorities such as the Dutch DPA and the Financial Markets Authority, the authority may take a new fining decision. In the event that this decision has the same purport as the first decision, the chances of compensation will be very low. In the event that a fining decision is overturned and, as in the case above, the fine was wrongly imposed and no new fine follows, those affected will usually be entitled to compensation. What is important here is that there must be a direct link between the damage suffered and the revoked decision. This is determined, among other things, by comparing the situation in which no decision would have been taken with the actual situation in which it was.
Compensation
The amount of compensation will depend on the circumstances of the case. The house dealers who participated in the settlement with the ACM received a sum of 35,000 euros. This amount was partly due to the length of the proceedings and the media attention the case received. A total of 18 traders applied for additional compensation in 2018, but these were rejected by the ACM. Some of the traders subsequently issued summonses. The Court in The Hague rejected all claims, saying the additional damages could not be attributed to the ACM as such. The Court of Appeal followed this line of the Court in The Hague and upheld the judgment.
Are you dealing with an authority yourself or do you have other questions as a result of this blog? Please feel free to contact Kim van Haastrecht or Jelle van den Biggelaar.
