Contributed By Nysingh Advocaten-Notarissen N.V
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.