Paul Breithaupt and Martijn van de Hel successfully represented MKB Multifunds in proceedings against the Authority Consumer & Market ("ACM") in appeal proceedings before the Trade and Industry Appeals Tribunal ("CBb"). The proceedings focused on various violations of the Wet Markt & Overheid (Public Enterprises (Market Activities) Act) by the Ministry of Economic Affairs and Climate Policy ("EZK"). MKB Multifunds opposed EZK's favoritism of its own investment fund Dutch Venture Initiative ("DVI").
After an earlier rejection, the ACM ruled in its decision on objection that MKB Multifunds' complaint was valid. EZK interested investors to invest in DVI, which selectively favored the DVI. This violated the Public Enterprises (Market Activities) Act. The ACM rejected the remaining objections. MKB Multifunds appealed this decision to the Rotterdam District Court.
The Rotterdam District Court ruled in favor of MKB Multifunds and overturned the ACM's decision. According to the court, EZK also provided selective subsidies to the DVI. However, the court upheld the legal consequences of the ACM's decision because the European Commission previously ruled that the loans would be at market rate. This was in response to a complaint by MKB Multifunds about illegal state aid granted by the EZK to the DVI. MKB Multifunds subsequently appealed to the CBb
The CBb once again ruled in favor of MKB Multifunds, overturning the court's ruling and the ACM's decision. According to the CBb, one of EZK's employees engaged in an unlawful conflict of duties. This is because the employee in question was not only the handling official in subsidy grants to the DVI (authority under public law), but also involved in getting investors interested in the DVI (economic activity). This also violates the Public Enterprises (Market Activities) Act.
This established the following:
- EZK granted a selective advantage to the DVI by conducting premarketing activities (in violation of Article 25j (1) Mw);
- EZK has selectively provided subsidies to the DVI;
- EZK engaged in an unlawful conflict of duties (in violation of article 25l Mw).
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