Contributed By Nysingh Advocaten-Notarissen N.V
Public enforcement actions regarding cartels are based on Article 6 of the Dutch Competition Act (referred to hereafter as 'the Act') and Article 101 of the Treaty on the Functioning of the European Union (TFEU). In fact, Article 6 of the Act is based on Article 101 of the TFEU, which prohibits the same conduct. Given the relation between these provisions, the Act refers to the TFEU for the definition of terms set out in Article 6, such as 'undertaking' and 'concerted practices'. Other concepts in the Act regarding cartels are generally also applied in line with EU competition law.
The Authority for Consumers & Markets (ACM) is entrusted with the public enforcement of Article 6 of the Act. When conduct also affects trade between EU Member States, the ACM is empowered to enforce Article 101 as well. The ACM replaced the Dutch Competition Authority in April 2013. Its enforcement powers are governed mainly by the Act, the Establishment Act of the Authority for Consumers and Markets and the Dutch General Administrative Law Act. Furthermore, several regulations, decisions and policy guidelines on the application of Article 6 of the Act and the powers of the ACM have been issued by the Minister of Economic Affairs. In addition, the ACM has published several documents, such as guidelines and opinions regarding the application of the cartel prohibition and procedures.
Private enforcement actions regarding cartels can be based on Article 6(1) of the Act in combination with clauses of the Dutch Civil Code like Article 6:162 (on tortious acts). The Private Competition Law Enforcement Implementation Act of 25 January 2017 implemented EU Directive 2014/104 and introduced new provisions for the private enforcement of infringements of Article 101 of the TFEU. These are laid down in Articles 6:193k-6:193t of the Dutch Civil Code.
The conditions precedent for a successful claim on the basis of Article 6:162 of the Dutch Civil Code are that there has to be an unlawful breach of Article 6(1) of the Act, which breach bears a causal link with the damages the claimant has suffered.
For a more detailed discussion of these conditions see 5 Private Civil Litigation Involving Alleged Cartels, below.
Article 6(1) of the Act provides that “agreements between undertakings, decisions by associations of undertakings and concerted practices of undertakings, which have as their object or effect the prevention, restriction or distortion of competition on the Dutch market, or a part thereof, are prohibited.” The cartel prohibition covers all types of competition restrictions, such as price, cost and output co-ordination, territorial and customer distribution agreements and hardcore bid-rigging, as well as mitigated forms such as cover-pricing, any exchange of competition-sensitive information and other agreements that have as their object or effect a decrease of competition among competitors, either horizontal or vertical. When applying Article 6(1), a distinction is made between conduct that has the 'effect' of restricting competition and conduct that has the 'object' of restricting competition, similar to the assessment under Article 101 of the TFEU.
Based on settled case law, a restriction of competition has to be appreciable in order to establish an infringement of Article 6(1). The concept of a single and continuous infringement also applies within the frame of this article.
In practice, the ACM deals mainly with horizontal conduct that restricts competition, such as price-fixing, bid-rigging and market-sharing. Vertical conduct, such as agreements between suppliers and purchasers, has rarely been investigated by the ACM in recent years. However, the ACM recently announced that it will put more emphasis on enforcement concerning vertical conduct like retail price maintenance; it has recently started investigations involving this type of conduct, especially concerning restrictions applicable to online shops.
The power of the ACM to impose sanctions for infringements of Article 6 of the Act is subject to a limitation period of five years. This limitation is interrupted by any act on the part of the ACM aimed at conducting an investigation or initiating proceedings concerning the infringement, and by any such act on the part of the European Commission or other national competition authority of a Member State of the EU concerning a violation of Article 101 of the TFEU.
The interruption commences on the first day on which at least one undertaking or association of undertakings that was party to the violation, or one of the persons, as referred to in Article 51(2)(2°) of the Netherlands Criminal Code (principals and de facto managers), is notified in writing of the act. The time limitation commences anew at the moment of the interruption.
In any event, the power to conduct an investigation or initiate proceedings shall ultimately lapse ten years after the violation is committed, plus the period during which the time limitation is suspended pursuant to Article 5:45, paragraph 3 of the General Administrative Law Act.
Article 6(1) of the Act concerns cartel conduct that has an effect on Dutch markets. Therefore, the ACM’s personal jurisdiction extends to those cases in which cartel conduct has an effect on the Dutch market or a part of it, irrespective of the location of the undertakings or associations concerned: the ACM has the competence to impose sanctions on an undertaking even if that undertaking is located in another country. In the Shrimps case, the ACM imposed fines on undertakings located abroad (Denmark and Germany) for the first time. Furthermore, Article 5 of EU Regulation 1/2003 gives the ACM the power to apply Article 101 of the TFEU, ie, cartel conduct that may affect trade between Member States, to individual cases.
No specific principles of comity are applied within the context of Dutch competition law. The ACM, however, co-operates closely with the European Commission and other European NCAs through the European Competition Network (the ECN), as required by EU Regulation 1/2003, for example in regard to case allocation between the NCAs and sharing information with and using information supplied by another NCA (Article 12 Regulation 1/2003). On the basis of this regulation the ACM may likewise carry out unannounced inspections in the Netherlands on behalf of another NCA.