Highest administrative-law court rules in ACM’s fine on Volkswagen for misleading commercial practices

On June 2, the Dutch Trade and Industry Appeals Tribunal (CBb), which is the highest administrative-law court in the Netherlands, handed down its ruling in the case against car manufacturer Volkswagen. The appeal was allowed.

This means that the fine imposed by the Netherlands Authority for Consumers and Markets (ACM) on Volkswagen for misleading commercial practices has been overturned. The CBb agrees with Volkswagen that the fine imposed on it in Germany stood in the way of fining by ACM. Although ACM was the first to impose a fine, the German fine was the first to become definitive, because Volkswagen accepted the fine.

This case concerns the diesel emissions scandal, or sometimes referred to as dieselgate. Between 2009 and 2015, Volkswagen, by installing special software, manipulated mandatory emissions tests. ACM launched an investigation into the diesel emissions scandal in 2017 at the request of the Consumers' Association (in Dutch, Consumentenbond), and imposed a (then maximum) fine of EUR 450,000 on Volkswagen. Volkswagen filed an objection against the fine. The German Public Prosecutor’s Office in Lower Saxony (in German: Staatsanwaltschaft Braunschweig) then imposed a fine on Volkswagen for inadequate internal oversight within the company, as a result of which the use of the software could not have been discovered. The German fine became irrevocable sooner, because Volkswagen accepted the fine, and did not seek any legal recourse.

ACM believed that the facts for which Volkswagen was fined in Germany are different facts than those for which ACM had imposed its fine at the time. That is why it deemed the objection filed by Volkswagen against the fine unfounded. The District Court of Rotterdam previously ruled that the fine had indeed been rightfully imposed. The CBb has now ruled differently.

The CBb agrees with Volkswagen that ACM’s fine concerned the same material facts for which it had already been imposed an irrevocable fine in Germany. That is why the CBb believes that, with ACM’s fine, Volkswagen has been fined twice for the same practices. No one can be fined twice for the same fact.

It is not possible to appeal to a higher court. This ruling is therefore irrevocable.