WILLEMSTAD – The Court of First Instance of Curaçao has upheld fines imposed by the Fair Trade Authority Curaçao (FTAC) in four separate cases involving violations of the statutory duty to cooperate with competition investigations.
The rulings concern penalties issued by the FTAC under the National Ordinance on Competition (Landsverordening inzake concurrentie, Lvic). As Curaçao’s independent competition authority, the FTAC is tasked with safeguarding fair competition and enforcing rules that prohibit, among other things, anti-competitive agreements between companies and the abuse of dominant market positions.
Two of the cases stemmed from an FTAC investigation into suspected price-fixing agreements involving coffee products. As part of that investigation, the authority sent information requests to 20 supermarkets. According to the court, the supermarkets Mangusa and Arco Iris failed to respond to the initial requests, a reminder, and a formal demand for information. As a result, the FTAC imposed administrative fines of Cg 450,000 on Mangusa and Cg 36,000 on Arco Iris.
The other two cases arose from a broader market study conducted by the FTAC, in which a questionnaire was sent to the Supermarket Association of Curaçao (SUVECU). When the questionnaire went unanswered, the authority approached three current and former members of SUVECU’s board. Two of them did not respond to written information requests and also failed to comply with two invitations to appear for an interview at the FTAC. Each of these individuals was fined Cg 25,000.
In its judgments, the court concluded that the FTAC is legally empowered to conduct investigations and to impose fines for violations of the duty to cooperate. The court further found that the authority exercised its powers appropriately, proportionately and with adequate reasoning.
The court saw no grounds to reduce the fines and left them fully in place. According to the rulings, the penalties are proportionate to the seriousness of the violations, the degree of blame attributable to the offenders and the specific circumstances of each case.
The court emphasized that failure to cooperate with information requests is a serious offense because it obstructs the FTAC in carrying out its supervisory role. Without cooperation, the court noted, anti-competitive practices such as cartels could remain undetected. In determining the level of sanctions, a distinction must be made between procedural violations, such as non-cooperation, and substantive breaches of competition law. The court also stressed that not every violation of the duty to cooperate is the same and that the context and purpose of the information request must be taken into account.
Additionally, the court highlighted that the status of the offender, whether an undertaking or a natural person, is a relevant factor in setting the amount of the fine. In all four cases, the court concluded that the FTAC sufficiently considered these factors when determining the sanctions.
The rulings reinforce the authority of the FTAC and underline the importance for companies and individuals to comply fully with information requests issued in the context of competition law enforcement.