Last Updated June 13, 2019

Law and Practice

Authors



Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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.

Nysingh Advocaten–Notarissen N.V

Burg. Roelenweg 11
8021 EV Zwolle

+31 (0)88 752 00 00

info@nysingh.nl www.nysingh.nl
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Authors



Nysingh Advocaten-Notarissen N.V offers its international clients a full range of legal services, with over 95 lawyers dedicated to building trust and developing business through responsiveness, accessibility and thorough, practical knowledge of clients’ industries and markets. The eight lawyers in its EU and competition law team advise on all competition law matters, including co-operation agreements, distribution systems and merger control in a variety of business sectors. The team has particular experience of defending companies in cartel investigations and structuring financial arrangements in accordance with state aid law and state aid notifications to the European Commission. It also advises on import barriers, especially in the food sector. The firm is part of one of the world’s largest legal networks, TAGLaw, with a presence in more than 90 countries around the world through 155 firms.

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