Court: Fine imposed by competition watchdog FTAC on Ernst & Young in Curaçao justified
August 25, 2023 –WILLEMSTAD – The fine previously imposed by the Fair-Trade Authority Curaçao (FTAC) on Ernst & Young will stand. The company, active in the fields of accounting, tax consultancy, and business advice, did not report the acquisition of KPMG Dutch Caribbean. In early 2019, Ernst & Young gained control over parts of KDC Interim, the trade name under which accountants and advisors from the former KPMG Dutch Caribbean operated. This was the first time that the competition authority in Curaçao imposed a fine.
Reports emerged in the Curaçao media at the end of 2018 about a merger between KPMG Dutch Caribbean (KPMG) and Ernst & Young Dutch Caribbean (Ernst & Young). Both companies are major players in the accounting industry.
However, as of December 31, 2018, KPMG International revoked KPMG’s license, meaning KPMG could no longer use the name KPMG.
Concentration can lead to companies with a dominant position and thus less competition in Curaçao. Therefore, it is legally stipulated that a concentration, a merger, or an acquisition, must be reported to the competition authority FTAC prior to its establishment.
Investigation
FTAC launched an investigation based on these reports. Despite inquiries from FTAC, Ernst & Young did not report a concentration with KPMG.
In the course of the investigation, FTAC conducted interviews with various competitors, directors, and customers.
This reporting obligation provides FTAC with the ability to monitor the creation or strengthening of market-dominating positions by companies. In Curaçao, companies must report significant mergers, acquisitions, and joint ventures (“concentrations”) to FTAC prior to their establishment based on the National Ordinance on Competition.
Companies must report concentrations if the involved companies together create or strengthen a market share of at least 30%. FTAC cannot block concentrations but can impose fines if a concentration is not reported when required or if incorrect or misleading information is provided to FTAC.
Judgment
The Court has ruled that the conditions for reporting a concentration have been met. Therefore, Ernst & Young should have reported the concentration to FTAC. For this judgment, the Court relied on case law on this subject from the Court of Justice of the European Union.
In that context, the Court considered it significant that Ernst & Young had made concrete plans to take over KPMG’s clients and had entered into agreements with former directors of KPMG.
It was also agreed that Ernst & Young would have access to all relevant information to carry out the transition plans that were made.
Agreements were made that certain clients would remain with Ernst & Young. Furthermore, it was agreed that the former directors of KPMG would not enter into new agreements with existing or new clients without the permission of Ernst & Young.
Finally, it is important that at least 14 employees of the former KPMG joined Ernst & Young in the period from February 1 to February 15, 2019.
The Court then ruled that the condition that the involved companies have created a market share of 30% or more with the concentration has been met.
Fine
The fine has been imposed on three companies. None of the companies, all of which are part of the economic entity Ernst & Young Dutch Caribbean, reported the concentration. Therefore, FTAC was able to impose the fine on the three companies.
Ernst & Young fundamentally disagreed with the conclusion and decision of the Fair-Trade Authority Curaçao. According to the consultancy firm, there was no takeover.
