ACM — 18/04/2025

Geradin Partners assists SIDN in refusal to supply procedure

Geradin Partners successfully represented SIDN, the registry of the .nl domain name, in administrative proceedings before the Trade and Industry Appeals Tribunal in The Hague (CBb). In addition to registry activities, SIDN provides domain security services to businesses. Dataprovider, a competing provider of domain security services, requested access to a large database that SIDN has assembled in its capacity as the .nl  domain name registry. SIDN refused this request, pointing inter alia to safety concerns. Dataprovider subsequently filed a complaint with the Dutch Competition Authority (ACM), claiming that by refusing access to its database SIDN abused its dominant position as registry. The ACM rejected this complaint because it considered that the so-called Bronner-criteria had not been met. These criteria are applied to determine if a refusal by a dominant company to provide access to a certain input or facility qualifies as an abuse of a dominant position. The ACM noted that despite SIDN’s refusal to provide access to its database, Dataprovider is able to provide domain security services to a large number of international clients. Access to the database is therefore a “nice to have” but not indispensable; indispensability being one of the criteria that must be met under the Bronner-test. This decision was confirmed by the Rotterdam district court in first instance. 

Dataprovider appealed the district court’s ruling before the CBb. In the court hearing, the CBb expressed doubts on the application of the Bronner-criteria. It questioned whether these criteria should be applied to SIDN’s refusal to provide access to its database, since SIDN has built and financed this database with a different commercial activity (i.e. as a registry) than the one where it meets Dataprovider as a competitor (i.e. domain security services). Therefore, it discussed with the parties the possibility that the economic rationale behind the Bronner-criteria may not apply to this case. We successfully argued that such a restrictive approach cannot be based on the case law, and the principle of contractual freedom and the need to protect SIDN’s incentive to invest in its databases are still valid in this case. In addition, we suggested that if the CBb wanted to adopt this new, restrictive approach, it should first raise preliminary questions to the ECJ. Ultimately, the CBb sided with the ACM and SIDN and confirmed that SIDN’s refusal to supply must be assessed under the Bronner-criteria. Dataprovider’s appeal was therefore rejected. The CBb’s judgment (in Dutch) can be accessed here.

Contacts:

Mattijs Baneke: mbaneke@geradinpartners.com

Ruben Elkerbout: relkerbout@geradinpartners.com

Author

Ruben Elkerbout

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