Antitrust Law of Netherlands

What is Antitrust Law

Legislations enacted by the federal and various state governments to regulate trade and commerce by
preventing unlawful restraints, price fixing, and monopolies; to promote competition, to encourage the
production of quality goods and services at the lowest price, with the primary goal of safeguarding public
welfare by ensuring that consumer demands will be met by the manufacture and sale of goods at
reasonable prices.

Antitrust law seeks to make enterprises compete fairly. It has had a serious effect on business practices a
nd the organizationof U.S. industry. Premised on the belief that free trade benefits the economy, busines
ses, and consumers alike, the lawforbids several types of restraint of trade and monopolization.

These fall into four main areas:

1. Agreements between or among competitors

2. Contractual arrangements between sellers and buyers
3. Maintenance of Monopoly power

Introduction
In the Netherlands, both European and Dutch competition law apply. Both areas of law are very
similar, since Dutch competition law is based on its European counterpart.
European competition law is applicable to agreements, decisions or concerted practices that restrict
competition and affect trade between member states of the European Union. Hence, application of
European competition can extend to the territory of the Netherlands (and the companies active
there) as well.
Dutch competition law is applicable only within the Dutch territory if competition within the
Netherlands is restricted. The Dutch Competition Authority (Autoriteit Consument en
Markt, ACM) enforces the Dutch Competition Act
Although private antitrust litigation in the Netherlands is increasing, (successful) actions for
damages brought for civil courts for infringements of Article 81 and/or 82 EC or their Dutch
equivalents remain rare. The number of cases in which damages have been awarded are limited to
only a very few.
Several factors contribute to these rare incidence.
The history of antitrust regulation and enforcement in the Netherlands itself. In the
Netherlands, antitrust law was considered to be lenient, since the old competition act did
not contain a prohibition provision similar to Article 81 EC.1 Only severe infringements
attracted attention, when they were scrutinised (and sanctioned) by the European
Commission under European antitrust rules. Private litigation under antitrust rules was
uncommon. Most cases involving antitrust regulation (still) deal with distribution
agreements and challenge (early) termination, or the validity of non-competition or
exclusivity clauses. In 1998, the new Dutch Competition Act ("Mededingingswet", "CA")
entered into force. Since then antitrust regulation has been in line with Articles 81 and 82
EC, but this new era has been too short to see results for the private enforcement of antitrust
rules. It must be said here that several actions for damages for infringements of Article 81
EC/6 CA are pending with civil courts or arbitrators. Because of their complex nature and
also for procedural reasons (for instance suspension of the case as long as the Commission
or the European Courts are involved)2 , these cases take years to reach a decision.
 Because of the long duration of civil proceedings, companies often prefer to conduct
summary proceedings, asking for interim injunctions. In these proceedings however, judges
are rather reserved about awarding damages (due to a lack of pressing interest), and claims
for damages are as a rule dismissed. Third, it cannot be ruled out that companies prefer
settlement or arbitration to litigation in a public courthouse. There are, for example,
numerous actions for damages pending before the court of arbitration for the construction
sector (bid-rigging). The outcome of settlements or of arbitration proceedings remains
outside the public domain.
Without "deep pockets" and the ability to "hold out longest", the cost of litigation and the
long duration of a case are dissuasive factors for both companies and private individuals to
initiate actions for breach of antitrust rules.
Mededingingswet, which entered into effect in January 1998. It also has the authority to enforce
articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU), which affect
the Netherlands directly. Dutch courts must apply these articles as well.

Agreements restrictive of competition

Article 6 of the Dutch Competition Act (the cartel prohibition) prohibits agreements between
undertakings, decisions by associations of undertakings and concerted practices which have as their
object (or effect) the prevention, restriction or distortion of competition in the Dutch market.
Contractual provisions and/or agreements that are restrictive of competition are null and void. This
nullity can be established in civil court proceedings between private parties.
The cartel prohibition does not apply to:

agreements in accordance with EU block exemption regulations (e.g. the EU block

exemption regulation for vertical agreements or the EU block exemption regulation for
technology transfer agreements)
agreements which benefit from a block exemption determined by Dutch governmental
decree
certain agreements or practices concerning public service companies (undertakings
entrusted with the supply of services of general economic interest)
collective employment agreements and collective pension agreements in an industry
agreements which are of minor importance. This so-called de minimis-exemption applies
to agreements restrictive of competition that involve no more than eight companies whose
combined annual turnover does not exceed 5,5 million (if the companies concerned are
active mainly in the supply of goods), or 1,1 million (in all other cases). This exemption
applies similarly to agreements between competitors whose combined market share does
not exceed 10% on any of the relevant markets (if these agreements are not liable to
appreciably affect trade between EU member states).
Furthermore, the Minister of Economic Affairs has issued policy guidelines in order to give more
guidance to companies on the 'dos and donts' under Dutch competition law (e.g. guidelines on
combination agreements and guidelines on private initiatives regarding competition and
sustainability).
If a restrictive agreement cannot be categorised under one of the above-mentioned arrangements,
companies can still resort to a general possibility of exception. Article 6 of the Dutch Competition
Act provides a general exemption for agreements or practices whose economic and/or technical
benefits outweigh their restrictions on competition and pass on a fair share of those benefits to
consumers. An appeal to this exemption involves self-assessment by the companies involved in the
restrictive agreement or practice.
Abuse of dominance
Article 24 of the Dutch Competition Act prohibits the abuse of a dominant position. Whereas the
TFEU provides a number of examples of abuse of a dominant position (such as the imposition of
unfair purchase or selling prices and the application of different conditions to equivalent
transactions with other trading parties), the Dutch Competition Act does not set out any specific
category of abusive conduct.
The Dutch prohibition of abuse of a dominant position does not provide for any exemptions, but
does lay down the possibility of obtaining a specific waiver. Article 25 of the Dutch Competition
Act indicates that a waiver may be granted upon request to undertakings entrusted with the supply
of services of general economic interest.
Having a dominant position on a certain market is in itself not prohibited. Only the abuse of such
a position is prohibited under Dutch competition law.

Merger control
Article 29 of the Dutch Competition Act specifies when a concentration of undertakings requires
prior notification to the ACM. A concentration is subject to notification and prior approval where:

the combined turnover of all parties involved in the proposed concentration in the previous
calendar year exceeded 150 million and
at the same time, at least two parties to the proposed concentration separately achieved a
turnover in the Netherlands of 30 million or more in the previous calendar year.
To concentrations in the Dutch healthcare sector, different (lower) turnover thresholds
apply:
the combined turnover of all parties involved in the proposed concentration in the previous
calendar year exceeded 55 million and
at the same time, at least two parties to the proposed concentration separately achieved a
turnover in the Netherlands of 10 million or more in the previous calendar year.
A concentration arises where companies merge; where one or more companies acquire control over
(part of) another company (take-over); and where two or more companies set up a full function (i.e.
independently operating) joint venture.
The notification process has several phases. In phase I, the ACM has four weeks to decide whether
the concentration
requires a permit (subject to phase II proceedings) or whether it can be cleared right away. In phase
II, the ACM has 13 weeks in order to decide whether or not to clear the concentration and issue a
permit.
Companies notifying an intended concentration to ACM are obliged to pay 17,450 for such
notification (phase I). If a permit is required and companies submit an application accordingly to
ACM, they must pay another 34,900 (for phase II).
Public enforcement of competition law in the
Netherlands
The ACM may impose an incremental penalty payment or a fine of up to 450,000 or 10% of the
annual turnover of the company that violated competition law. The ACM may also impose fines
on individuals who gave instructions or exercised de facto leadership in the realisation and
conclusion of restrictive agreements between companies.
As of 1 July 2016, legislative changes will presumably take effect, increasing the statutory maxima
listed above. These legislative changes will apply only to infringements that have been committed
after the legislative changes have entered into force.
The main alterations include an increase of the maximum fine (absolute amount) from 450,000
to 900,000, a multiplication of the maximum fine by the number of years that the cartel
infringement has lasted (with a maximum of four years and a minimum of one year), and an
additional 100% increase of the maximum fine in case of recidivism.

Private enforcement of competition law in the

Netherlands
The Netherlands legal landscape regarding the private enforcement of competition law has evolved
over recent years. Increasing numbers of civil liability cases on the basis of (alleged) competition
law infringements have been brought before the Dutch civil courts.
The Dutch legal framework for cartel damages claims consists of the general rules regarding
liability for wrongful conduct (tort). Under the implementation of EU Directive 2014/104/EU on
antitrust damages actions, the Dutch government is implementing a number of amendments to the
Dutch Code on Civil Procedure and the Civil Code with the aim of further developing and tailoring
Dutch civil law to these private damages claims. The implementation deadline of the Directive is
set for December 2016.

References
1. http://ec.europa.eu/competition/antitrust/actionsdamages/national_reports/netherlands_en.pdf
2. https://www.akd.nl/d/Documents/26-04-2016_Addleshaw-Goddard_JHoudijk.pdf
3. http://legal-dictionary.thefreedictionary.com/antitrust+law