Public enforcement actions regarding cartels are based on Article 6 of the Dutch Competition Act (“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 of the TFEU as well. The ACM has the authority to investigate and sanction behaviour that contravenes these articles, with its enforcement powers governed 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.

Although there are no criminal penalties under Dutch law for cartel participation, companies may face civil liability, as affected parties can seek compensation for damages through civil litigation if they have suffered harm due to anti-competitive practices (see 6. Civil Litigation).

There is a private right to challenge cartel behaviour. Affected parties can bring civil actions to seek compensation for damages caused by anti-competitive practices, either as a follow-on action after a sanction decision by the ACM or as a standalone claim (see 6. Civil Litigation).

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 restriction of competition on the Dutch market, or a part thereof, are prohibited. This prohibition encompasses various types of competition restrictions, including: (i) price, cost and output co-ordination; (ii) territorial and customer allocation agreements; and (iii) 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). With reference to EU case law, the highest court in competition cases in the Netherlands has ruled that for restrictions by object, examining the appreciable impact of the agreement or practice can be omitted. Furthermore, the concept of a single and continuous infringement is also applicable under this article.

In practice, the ACM primarily addresses horizontal conduct that restricts competition, such as price fixing, bid rigging and market sharing. Vertical conduct, such as agreements between suppliers and purchasers, has been less frequently investigated by the ACM. However, in recent years, the ACM has announced increased enforcement focus on vertical conduct, such as retail price maintenance (RPM), and has fined several companies (Samsung and LG) in separate cases concerning exercising undue influence on retailer prices. The ACM has also stepped up its scrutiny of other RPM forms in vertical relationships, particularly restrictions affecting online shops.

The ACM has also increasingly stressed its scrutiny of other forms of RPM conduct in other vertical relationships, especially restrictions applicable to online shops.

The ACM’s authority 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 action on the part of the ACM aimed at conducting an investigation or initiating proceedings concerning the infringement, as well as by any such action taken by the European Commission or another national competition authority (NCA) of an EU member state concerning a violation of Article 101 of the TFEU.

The interruption begins on the first day on which at least one undertaking or association of undertakings involved in the violation, or one of the individuals referred to in Article 51(2)(2°) of the Netherlands Criminal Code (principals and de facto managers), is notified in writing of the action. The limitation period restarts at the moment of interruption.

In any event, the authority to conduct an investigation or initiate proceedings will ultimately lapse ten years after the violation has ended, in addition to any period during which the limitation period is suspended pursuant to Article 5:45, paragraph 3 of the General Administrative Law Act, which stipulates that the limitation period is suspended if an objection or appeal is lodged against the ACM’s fine, until a final decision is rendered on the objection or appeal.

Article 6(1) of the Act concerns conduct that has an effect on the Dutch market. 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 (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). Under this regulation, the ACM is also authorised to conduct unannounced inspections in the Netherlands on behalf of another NCA, as it did in at least two instances in 2024.

The ACM does not focus on specific types of cartels. In recent years, it has been observed that, in addition to classic cartels, the ACM also sanctions hub-and-spoke(-like) cartel behaviour and price influence or price setting in vertical relationships (distribution relationships).

The Ministry of Economic Affairs has established various policy rules and decrees regarding the application and enforcement of Article 6 related to the ACM. In addition, the ACM has released numerous guidelines, policy rules and other documents over time addressing cartel behaviour, its monitoring and enforcement. These include the following.

The Ministry of Economic Affairs:

• the Decree regarding exemptions for co-operation agreements in retail trade;
• the Decree regarding exemption for sector protection agreements;
• the Policy Rules regarding combination agreements 2013; and
• the Policy Rule regarding fines.

The ACM:

• the Guidelines regarding Price arrangements of self-employed workers;
• the Guidelines regarding Collaborations between competitors;
• the Policy Rule regarding the ACM’s oversight of austainability agreements;
• the Guidelines regarding Arrangements between suppliers and buyers;
• the Guidelines regarding collaborations between farmers;
• the ACM procedure regarding informal opinions;
• the 2014 ACM Procedure for the inspection of digital data;
• the ACM Procedure regarding the legal professional privilege of lawyers;
• the Decision regarding the granting of leniency;
• the Guidelines for simplified resolution of sases involving a fine; and
• the Policy rule regarding the prioritisation of enforcement investigations.

Investigations can be initiated in the following ways:

• on the ACM’s own initiative;
• after a complaint has been submitted;
• after receiving a tip-off; or
• when a cartel participant submits a leniency request to the ACM.

Depending on the information that the ACM receives, it will gather additional data on market positions before taking further investigative steps. If the case so requires, economic analyses and digital desk research may be conducted, or collaboration with other authorities such as the public prosecutor and the Dutch Authority for the Financial Markets (AFM) may be sought. The ACM also has the option to initiate inquiries within specific economic sectors. After these steps, the ACM typically conducts a dawn raid, during which it copies documents, primarily digital data, and interviews employees.

The ACM is authorised to enter any location (except a private home) without the occupier’s consent and may bring necessary equipment. If entry is refused by the company, the ACM can seek police assistance to gain access. The right to enter “any location” includes places such as employees’ cars.

ACM officials can also enter a private home without the resident’s permission if it is reasonably necessary for their investigation. However, this requires a warrant from the examining magistrate at the District Court of Rotterdam, which must be presented upon request.

Companies are required to fully co-operate with ACM officials, who may set reasonable time limits for compliance. Failure to co-operate can result in fines. During a raid, documents are copied, with a focus on digital data. Due to the obligation to co-perate, the company must ensure that the ACM has access to its data in archives and the physical and digital environments of individuals identified as “targets” by the ACM. This includes all digital storage devices, such as laptops, mobile phones and USB sticks – and even personal devices if they are used for work purposes. The ACM searches for documents, including emails and chat messages, using search terms. However, these search terms are often broad, leading to discussions between the ACM and the company, even after the raid, about what falls within the scope of the investigation. This can result in certain documents not being copied. If the discussion does not lead to a resolution, the company must formally object to the ACM’s actions and may use this objection later in the procedure or in an appeal against a fine decision. Alternatively, the company can initiate summary proceedings against the ACM’s actions.

Furthermore, the ACM is not permitted to view or copy correspondence between the company and external counsel and in-house lawyers admitted to the Bar, as this is protected under legal professional privilege (LPP). If it cannot be determined on site whether documents are protected by LPP, or if there is a dispute with the company, this data is later reviewed by an LPP officer of the ACM. At the end of the dawn raid, the company receives a copy of all copied data, including documents under discussion regarding LPP. ACM officials are also empowered to seal off business premises and objects as needed for their investigation. Typically, specific offices and/or devices are sealed if the investigation cannot be completed in one day.

The ACM can interview any current or former employee of the company – not just official representatives. Interviews can occur during a dawn raid or afterwards, either at the company’s premises or at the ACM’s offices. Employees must answer all questions except those that could incriminate their employer. External counsel may attend interviews and may advise the employee to exercise their right to remain silent in response to certain questions. ACM officials will record and take the minutes of the interview, asking the employee to sign them. It is advisable to review these minutes carefully before signing, as doing so indicates agreement with their content.

There is no obligation to keep documents or data on the basis of the Act or the General Administrative Law Act. There may be obligations to keep documents and data on the basis of other laws (eg, tax laws).

However, once the ACM requires inspection of business information and documents, the spoliation of that information or those documents would constitute a violation of the obligation to co-operate with the ACM, for which the ACM may impose fines. The ACM did so for instance in 2019, imposing a fine of EUR1.84 million on a company in a case in which employees of a company under investigation left several WhatsApp groups, and deleted chat conversations during a dawn raid.

Officers or employees have the right to be assisted by a legal representative. The ACM may refuse to allow assistance by a person against whom there are serious objections. This does not apply, however, to counsel that are admitted to the Bar. Legal counsel are not allowed to give answers or to advise on the answers, though they are allowed to advise the interviewee to remain silent.

In practice, a dawn raid focuses on digital data. For this the ACM set the “Procedure for the inspection of digital data” in 2014, in which it details the way in which it will deal with digital data that has been collected in investigations, what safeguards it will observe when inspecting digital data and a number of verification tools that individuals involved have for verifying whether these safeguards have been observed.

Once the data has been secured, the enforcement official hands an overview of the data in the secure data set to the company involved, including the relevant hash values. The purpose of calculating a hash value is to safeguard a file’s integrity. Any change to a file will result in a different hash value.

When secured data is to be examined by the ACM for the purpose of determining whether it is a within-scope data set, the enforcement officials give the company involved the opportunity to be present during this examination. No later than the moment of making them available for perusal, the enforcement officials hand to the company involved an overview of the data that is included in the within-scope data set, and of the manner in which the within-scope data set was realised. The search queries that have been used are provided immediately after a data search has been conducted.

An enforcement official may see reasons to demand inspection of the data under Article 5:17 of the General Administrative Law Act without having inspected it at the time the data was demanded and secured.

If the enforcement officials inspect the demanded and secured data in order to assess whether it is within-scope, and the company involved indicates that some of the data concerns privileged correspondence, the enforcement official will give the company the opportunity to be present at the offices of the ACM when such data is inspected.

In cartel procedures, the ACM treats data – whether analogue or digital – as attorney-client privileged, regardless of the regulation to which the data pertains. In other situations, existing jurisprudence is followed with regard to the material scope of the right to privileged correspondence. The ACM is prohibited from using such data in enforcement procedures. This applies to communication with a lawyer, including an in-house lawyer, who is admitted to the Bar, but not to communication with other legal professionals. On the other hand, according to Dutch law, attorney-client privilege also exists in relation to in-house lawyers who are admitted to the Bar.

If ACM officials conduct investigations on the basis of Dutch competition law, Dutch national rules apply and the correspondence with both in-house and external counsel, if admitted to the Bar, is covered by attorney-client privilege. The same goes for investigations by the ACM at the request of the Commission or a competition authority of another member state. However, if ACM inspectors only assist the Commission officials, EU rules apply and correspondence with in-house counsel, even those admitted to the Bar, is not covered by LPP. 

When inspection of data is demanded by ACM enforcement officials, the company may indicate that some of the data pertains to privileged correspondence. If the company believes that the document is privileged (in part or completely), then it is not obliged to disclose the (entire) contents to the ACM officials. The company must support such claims by putting forward to the enforcement officials the grounds on which the document is indeed protected by LPP. The company can indicate and explain, in particular, who the author is, whom the document is for, the respective positions and duties of each of them, and the objective with which and the context in which the document was created. If the ACM officials are not convinced of the claimed privileged nature of the data, yet the company maintains its claim, a designated LPP officer of the ACM is engaged to first assess the privileged status of the data claimed by the involved party before the supervising official is permitted to view the data. This also applies if the enforcement officials themselves encounter documents that they suspect may contain privileged information, even without a claim from the company. In both cases, the procedure involving the LPP officer is as follows.

• The LPP officer evaluates the privileged status of data claimed as such by the involved company, based on the explanation provided. The officer may request further clarification.
• If the LPP officer, in the presence of the company, agrees with the claim, they inform both the company and the enforcement officials, who must then refrain from viewing or demanding the data.
• If the LPP officer disagrees with the claim regarding digital data, the data is secured after being demanded. For analogue documents, a copy is taken in a sealed envelope.
• If an assessment cannot occur in the company’s presence, digital data is secured, and the claim procedure (see below) is followed. For analogue data, a copy can be handed over in a sealed envelope.
• Data deemed privileged by the LPP officer is marked “LPP assigned”. If the claim is deemed unjustified, it is marked “LPP provisionally (partially) rejected”.
• The LPP officer informs the party in writing of the initial assessment and allows five working days for further written explanation.
• If the LPP officer still finds the claim unjustified after further explanation, the data is marked “LPP rejected”. Data with valid claims is marked “LPP assigned”.
• The officer notifies the company in writing, stating that the data will be provided to the enforcement officials after ten working days unless the party agrees to an earlier transfer. Data with honoured claims are exempt from this transfer. The ten-working-day waiting period allows the company to initiate civil summary proceedings to prevent the LPP officer from transferring the data. If a summons is served within this period, the data will not be transferred while proceedings (and any appeal) are ongoing.

LPP officers are ACM officials who are not and will not be involved in the investigation in relation to which they have examined data or documents, or in any other investigation in which the data or documents (or parts thereof) from the former investigation are used. They are not, however, independent.

The procedure regarding legal privilege is not mandatory. If the company believes that an assessment by the LPP officer offers too few safeguards, it is free to start a (civil law) interim injunction proceedings against the inspection of documents by an ACM official.

Generally, companies and employees comply with requests for information, since non-cooperation with the ACM can result in a fine of up to EUR900,000 or 1% of the annual turnover. This does not mean, however, that requests for information should not be treated critically. If, for instance, requests are unreasonable or vague, this should be discussed with the ACM.

Companies accused of breaching the cartel prohibition are granted access to the investigation file during the procedure to effectively exercise their rights of defence. However, documents protected by LLP are excluded, as detailed above. Companies may also claim that other documents in the file are confidential.

Furthermore, lawyers admitted to the Bar, representing the companies involved, are afforded the opportunity to utilise the data room procedure. This data room grants access to all documents within the investigation data sets, which are more extensive than the investigation file, from the parties involved in the investigation. The investigation data sets encompass all data collected by the ACM during dawn raids, including business-confidential information. This procedure is subject to limitations, as companies do not have unrestricted access due to the protection of confidential information. Additionally, actions such as making copies by the lawyers are prohibited.

From a formal perspective, the target of a cartel investigation has the opportunity to raise legal and factual arguments against the ACM’s view of the case when the ACM has issued its Statement of Objections (SO). The company involved can submit its comments on the SO in writing and orally. In practice, however, defence counsel will be in constant contact with the ACM from the outset of an investigation, submitting information in favour of the company. Defence counsel may also try to persuade the ACM to adopt a so-called commitments decision (comparable to a commitments decision under Article 9 of EU Regulation 1/2003) and stop the investigation.

Under Dutch competition law, a leniency programme is in place to incentivise companies involved in cartels to disclose their activities and cooperate with the ACM in return for reduced penalties. This programme is formalised in a Decree of 9 February 2021 establishing rules regarding the granting of leniency for fines related to cartels (“the Leniency Decree”). It is important to note that the Leniency Decree does not provide protection against private enforcement actions initiated by third parties. This leniency programme only applies to a “cartel” – ie, an agreement or concerted practice between two or more competitors with the objective of impeding competition, in violation of Article 101 of the TFEU or Article 6 of the Act.

In practice, the programme is not frequently utilised, although there are occasional instances where companies take advantage of it, sometimes during an ongoing investigation. To qualify for leniency, a company must provide significant evidence of the cartel’s existence and co-operate fully with the ACM throughout the investigation. The leniency programme is discretionary, with the ACM evaluating each application based on the quality and timeliness of the information provided and the level of cooperation offered by the applicant. The Dutch leniency regime includes a marker process, allowing companies to secure their place in the leniency queue while they gather the necessary information to complete their application.

Immunity

The ACM grants immunity from fines to the first leniency applicant who submits a request for immunity from fines with regard to a cartel, if the application concerns a cartel into which the ACM has not yet launched an investigation and the applicant provides information that enables the ACM to perform a targeted inspection. No immunity will be granted if the applicant has coerced another undertaking into participating in the cartel. Furthermore, the applicant is obliged to co-operate with the authority, which means that the applicant refrains from any action that may impede the investigation or the proceedings until the decision to impose an administrative fine becomes final with respect to all practices involved in the cartel. The applicant is also obliged to provide the ACM with all information regarding the cartel that they have or may reasonably obtain, of their own accord or at the ACM’s request, as soon as possible, and to ensure that individuals who are working for the applicant and, insofar as is reasonably possible, individuals who have worked for the applicant are available to make statements. The company must cease any involvement in the cartel after submission of the leniency application, unless and insofar as the ACM considers the continuation thereof to be reasonably necessary in order to preserve the effectiveness of inspections.

The ACM also grants immunity from fines to a leniency applicant if the above-mentioned conditions have been met and the application concerns a cartel into which the ACM has already launched an investigation but not yet sent an SO to any of the parties involved. This immunity will only be granted, however, if the application provides the ACM with documents that stem from the period of the practice in question that were not already in the ACM’s possession, and on the basis of which the ACM is able to prove the existence of the cartel.

A company or individual considering applying for leniency may contact the ACM to exchange ideas about a body of facts and the applicability of the leniency policy in that context. A prospective leniency applicant may also inquire with the ACM by telephone, but only through a lawyer admitted to the Bar, to determine whether immunity from fines (the position of the first-in-the-door whistle-blower) is still available. If the ACM responds positively to the inquiry, the lawyer is required to submit an application for immunity from fines immediately.

A leniency application includes a written leniency statement which contains, inter alia, a detailed description of the cartel arrangement, including the products or services involved, the geographical scope, the duration, the functioning of the cartel and the estimated market volumes or sales affected by the cartel, as well as the specific dates, locations, contents of and participants in the cartel interactions. Furthermore, it must mention the names and addresses of all the undertakings that participate or participated in the cartel, as well as the names, positions, working locations and, where relevant, home addresses of the individuals who are or who have been involved in the cartel.

A leniency application also contains evidence corroborating the statements, insofar as the applicant has such evidence or such evidence is reasonably available to the applicant at the time of the submission of the application.

A natural person who submits a leniency application may be eligible for the same immunity or reduction of a fine as the undertaking at which they work, if they declare that they wish to be considered a leniency co-applicant with the undertaking, and they meet the conditions for immunity from fines on their own.

With the ACM’s permission, a leniency statement may be submitted orally, if the ACM believes that the leniency applicant has a legitimate interest in doing so. In such cases, the ACM records the oral statement and draws up a transcript.

The ACM does not disclose the identity of the leniency applicant to third parties until the SO has been issued to everyone involved in the cartel, unless the leniency applicant has consented to disclosure.

In accordance with Article 12 of EU Regulation 1/2003, the ACM only forwards a leniency statement to another competition authority or to the European Commission if:

• the leniency applicant has consented to the sending; or
• the competition authority to which the ACM forwards the leniency statement has received a leniency application from the same leniency applicant with regard to the same alleged cartel as the ACM has on the condition that, at the time of sending the leniency statement, the applicant has no opportunity to withdraw the dispatched information.

Markers

A leniency applicant who submits an incomplete leniency application may be eligible for a marker if the ACM believes the application offers a concrete basis for reasonable suspicion of the applicant’s involvement in a cartel, and the leniency applicant provides information on at least the name and address of the leniency applicant, the cartel participants, the affected products or services, the cartel’s geographic scope, the cartel’s duration, the nature of the cartel’s practices and whether the leniency applicant has approached or may approach the European Commission with regard to the cartel. The duration of the marker will be set by the leniency officer. As soon as a complete application has been submitted within the time limit the leniency officer has set for it, the marker will turn into a proper leniency application.

Reduction of Fines

The ACM grants a leniency applicant a reduction of at least 30% and no more than 50% on a fine if immunity from fines is no longer available in case the applicant is not the first in the door and the ACM has not yet sent an SO. In order to qualify for a reduction, the applicant must be the first to submit an application that contains information which adds significant value to the ACM’s investigation, and complies with the obligation to co-operate. The second company that submits an application for reduction of a fine can get a reduction of 20–30%; subsequent applicants can get a reduction of up to 20%.

Lastly, the ACM does not keep an official public record of its grants of leniency, nor does it publish details of these in its annual reports. However, in each decision in which it imposes fines, the ACM will publish the extent to which it applied leniency.

The Whistleblower Protection Act provides safeguards for individuals who report suspected wrongdoing to a competent authority, such as the ACM, including on (potential) violations of EU law, or actions that threaten the public interest by breaching or potentially breaching regulations. Whistle-blowers covered by this act are natural persons who, in the context of their work-related activities, report or disclose suspected wrongdoing. Such suspicion arises when a whistle-blower believes that, within the organisation they work or have worked for, or another organisation they have come into contact with through their work, there is wrongdoing as described. This suspicion must be based on reasonable grounds derived from the knowledge acquired through their employment or through their work with another company or organisation.

Whistle-blowers reporting suspected violations of the cartel prohibition to the ACM are thus protected under this law. The ACM has clarified that reports should not be based merely on rumours or information read in the press. The Whistleblower Protection Act stipulates that a whistle-blower must not be disadvantaged during or after the handling of a report, provided that the report to the employer or competent authority is made with reasonable grounds to believe that the information about the suspected misconduct is accurate at the time of reporting. Disadvantage includes dismissal, suspension, demotion, denial of promotion, transfer, discrimination, negative evaluation, or premature termination of a contract for goods or services. This is particularly relevant if a customer reports a suspected cartel involving their supplier to the ACM.

The ACM promotes whistle-blowing by providing a dedicated page on its website with essential information for potential whistle-blowers. However, it appears that the whistle-blower protection is not widely utilised in practice in relation to violations of the Act.

The ACM is entitled to interview company employees and former employees for the purposes of ongoing investigations and will do so in practice. This can be accomplished in informal settings, as part of hearings and in the context of dawn raids. Employees are allowed to be accompanied by counsel and are obliged to co-operate, but will have the right to remain refrain from providing responses that could incriminate the company if they are an employee of a company that is the target of an investigation.

The ACM can seek documentary information directly from the company under investigation, either by sending it a request for information or in the context of dawn raids. The same goes for other companies (not the subject of an investigation) or individuals.

The ACM has jurisdiction over practices that affect the market in the Netherlands, irrespective of where the companies involved are located. Therefore, the ACM has the power to request the provision of information from companies located outside the Netherlands. The General Administrative Law Act does not limit these powers to companies located in the Netherlands. Where needed, the ACM may request the assistance of other competition authorities.

The competition department of the ACM works together with other departments within the ACM, such as the consumer, energy, or telecommunications, transport and postal services departments.

Furthermore, the ACM engages in close co-operation with other market authorities, such as the Dutch Authority for the Financial Markets, the Dutch Data Protection Authority, the Netherlands Gambling Authority, the Dutch Central Bank, the Dutch Healthcare Authority and the Dutch Media Authority, within the so-called Consultation Forum of Regulatory Bodies.

The ACM has concluded publicly available co-operation agreements with each of these authorities or agencies, and with numerous other bodies. These agreements generally contain clauses that authorise the mutual exchange of case-appropriate information, insofar as the exchange is necessary for the proper fulfilment of the authority’s tasks.

The ACM has also concluded such an agreement with the Public Prosecutor (Openbaar Ministerie). The Collaboration Protocol between the ACM, the Public Prosecutor and the Dutch Tax and Customs Administration enables the exchange of information. The Dutch Data from Judicial and Criminal Proceedings Act authorises the Public Prosecutor to supply the ACM with “personal data from criminal proceedings”. Hence, evidence that has been appropriated by the Public Prosecutor and electronically stored, such as information gathered through legitimate phone taps, can be exchanged with the ACM to be used in a formal antitrust investigation. Either the ACM can request this information, or the Public Prosecutor can do so ex officio.

The ACM participates in the ECN, in the European Competition Authorities (ECA), a collaboration between NCAs in the European Economic Area, and in the International Competition Network (ICN). The co-operation occurs through:

• informing each other of new cases and envisaged enforcement decisions;
• co-ordinating investigations, where necessary;
• helping each other with investigations;
• exchanging evidence and other information; and
• discussing various issues of common interest.

It is not uncommon for the ACM to co-operate with enforcement agencies in foreign jurisdictions.

Under Dutch law, criminal enforcement of violations of the Act is not possible.

There is no provision in the Dutch competition law system for civil enforcement by the ACM.

Economists specialising in the economics of competition are often retained to provide insights into the definition of a market (ie, its scope) or, for instance, into the competition mechanisms of a market in a specific sector. The involvement of economists may occur at any stage of the procedure. Submitting expert reports when giving a view on the SO forces the ACM to refute the findings of the expert report.

Since the ACM is the sole authority that has the power of public enforcement of the Act, it is not possible to have multiple public enforcement proceedings involving the same or related facts. It is, however, possible that the same or related facts form the basis of civil law proceedings by companies or consumers that claim damages caused by the infringement of the cartel prohibition (private enforcement).

Furthermore, where an investigation is subject to both EU and Dutch competition law scrutiny, after consultation, the Commission has the authority to relieve the ACM of its competence under Article 11 of Regulation 1/2003.

The ACM is empowered to impose sanctions on companies, specifically fines and orders for periodic penalty payments. An order for periodic penalty payments is intended to ensure the swift cessation of an infringement, serving a distinct purpose from that of a fine. Both a fine and an order for periodic penalty payments can be applied to the same infringement.

The maximum fine that the ACM may impose per violation of the cartel prohibition is EUR900,000 or 10% of the total (global) annual turnover of the undertaking involved, whichever is higher. The maximum amount also depends on the duration of the cartel, since the aforementioned maximum can be multiplied by the number of years the violation has lasted (with a minimum of one and a maximum of four years). In the case of repeat violations, this fine can even be doubled.

As under the EU competition law regime, a parent company can (and will) be held liable for a fine imposed on its subsidiary. It is for the parent company to demonstrate that it does not or did not exercise a decisive influence over the behaviour of the subsidiary. Moreover, the highest administrative court in the Netherlands with respect to penalty decisions of the ACM has ruled that the ACM may hold an investment firm liable for a cartel infringement committed by one of its portfolio companies, if it exercised decisive influence over that portfolio company. Decisive influence may result from a combination of circumstances, such as percentage of shares, participation in the appointment of the company’s management and supervisory bodies, notes, etc. This does not apply to purely financial investors. In this particular case, the investment firm was fined separately instead of jointly and severally, as is normally the case regarding parent companies and their subsidiaries. This was due to the specific circumstances of the case.

The ACM may also impose fines on individuals, up to a maximum of EUR900,000. Such a fine may be doubled if the individual committed a similar infringement within the previous five years.

The level of fines that the ACM may impose must be determined in accordance with the rules set out in the 2014 Policy Rules of the Minister of Economic Affairs on the imposition of administrative fines by the ACM. These rules provide detailed guidance on how the ACM may exercise its authority to impose administrative fines, within the boundaries of the law. The ACM sets a basic fine of between 0% and 50% of an undertaking’s relevant turnover, depending on the seriousness of the violation, the circumstances in which it was committed and its duration. The relevant turnover is the one in the last full year in which the company committed the violation, multiplied by a factor of 1/12 for each month that the violation lasted.

The ACM may impose a sanction directly, but there is a separation (Chinese wall) between the ACM department that carries out investigations and prepares the SO, and the department that decides whether a sanction should be imposed. After an investigation has resulted in an SO by the Competition department, the case will be handed over to the Legal department of the ACM, which is not independent but part of the ACM organisation. The Legal department must hear parties on the SO. Parties are entitled to respond to the SO at least in writing and are normally also allowed to respond orally. The oral hearing will take place in front of a hearing committee composed of officials of the legal department of the ACM. The legal department will consider the case and draft a proposal for a decision to be taken by the Board of the ACM.

In 2018, the ACM introduced the “ACM’s guidelines for simplified resolution of cases involving a fine”. If the ACM finds a violation and deems the case eligible for a simplified resolution, the companies involved can benefit from a 10% fine reduction. This reduction can be additional to other reductions, such as those from leniency. For a simplified resolution, the involved companies must acknowledge the violation, confirm that sufficient access to the file has been provided, and that there has been sufficient opportunity to be heard. The company must agree with the results of its discussions with the ACM and document this in a simplified resolution submission. The company is no longer bound by its submission if the ACM decides to halt the simplified procedure. Companies can also withdraw from this procedure and follow the standard procedure until the ACM approves the statement. However, a company must have already stopped the violation to qualify for this procedure.

The ACM can suggest at any moment that the case is suitable for simplified resolution, but the companies involved can also independently approach the ACM. There is no fixed time for initiating this simplified procedure, although this is unlikely if the ACM’s decision-making process is already at an advanced stage. The more companies that want to participate in the simplified resolution, the more likely it is that the ACM will opt for a simplified resolution. The ACM insists that a simplified resolution must offer significant efficiency benefits. Consequently, this procedure will result in a considerably shortened decision, which is less comprehensive than in regular procedures. Just like in the regular procedure, this decision will be published on the ACM’s website.

A company wishing to participate in the simplified procedure must also sign a confidentiality agreement. It commits to handling information from the simplified procedure discussions and information exchanged with the ACM confidentially. It cannot share this information with third parties (including other companies involved in the same procedure) without prior ACM approval. The ACM holds separate discussions with each company involved. Parties can have a representative present during discussions with the ACM, such as a lawyer. During these discussions, the ACM presents the violation and the proposed fine to the companie involveds, which can then respond. To expedite the procedure, the ACM sets short response deadlines for parties and can limit the length of written documents.

The ACM keeps a separate file for all simplified procedure correspondence. If the simplified procedure is terminated, the involved company’s aforementioned recognition also becomes void. The ACM will not use information from this company against it. If this company wishes to use certain documents and positions, it can introduce them in the standard procedure.

Furthermore, the Act provides a procedure according to which the ACM may decide to refrain from further investigation and sanctions if the companies involved in the investigation pledge in writing to refrain from certain behaviour, enabling the ACM to adopt a commitment decision (comparable to a commitment decision under Article 9 of EU Regulation 1/2003). The ACM has the discretion to refuse a pledge if it intends to impose a fine. Normally it will refuse a pledge in the case of hardcore cartels or when the pledge has been made when the investigation has nearly been completed.

A penalty decision by the ACM, against which no further appeal is possible, serves as compelling evidence in civil proceedings related to private damages actions, underscoring its significance for follow-on damages claims. Additionally, under Article 2.87 of the Dutch Public Procurement Act 2012, which implements EU Directive 2014/24 on public procurement, contracting authorities may exclude undertakings from procurement procedures if they can demonstrate, through appropriate means, that the undertaking is guilty of grave professional misconduct, thereby questioning its integrity or if the contracting authority has sufficient plausible indications to conclude that the undertaking has entered into agreements with other undertakings aimed at distorting competition. Therefore, an ACM penalty decision may result in exclusion from procurement procedures.

Under Dutch law, infringement of competition law is not a criminal offence, so an infringement cannot lead to criminal proceedings.

As infringement of competition law is not a criminal offence under Dutch law, criminal sanctions are not possible. Consequently, there is no history of criminal sanctions in this area.

An effective compliance programme does not serve as a mitigating factor when imposing sanctions. However, it can result in reduced fines or immunity, as such a programme is likely to uncover cartel agreements at an early stage, allowing the company to apply for leniency.

Sanctions imposed by the ACM cannot be extended to mandatory consumer redress or restitution.

However, the fact that those harmed by the infringement have been voluntarily compensated is a mitigating circumstance in relation to the fine.

Once the ACM has issued a decision, the addressees may file an objection with the ACM itself. In the notice of objection, one may request the ACM’s consent for a direct appeal to the District Court of Rotterdam. The objection must be filed within six weeks of receiving the decision. If the ACM consents to the direct appeal, it will forward the notice of objection and the case file to the court. If the ACM does not consent, it will reconsider its decision after hearing from the objecting company. Following the ACM’s decision on the objection, an appeal can be filed with the District Court of Rotterdam, again within six weeks of the decision on the objection being issued.

An appeal against the court’s judgment can be lodged with the Trade and Industries Appeal Tribunal. Both the District Court of Rotterdam and the Trade and Industries Appeal Tribunal have full jurisdiction, enabling them to review the ACM’s factual findings, legal assessments and imposed sanctions.

A cartel enforcement investigation and proceeding can take several years from dawn raids to the conclusion of an appeal. The initial phase, which includes dawn raids, the subsequent investigation by the ACM and the decision, on average can last from two years to five years. If the companies involved decide to appeal the ACM decision, the appeal process can extend the timeline by another two years, depending on the complexity of the case.

In the Dutch legal system, both legal entities and individuals have the right to claim damages before the civil courts if they believe they have suffered harm due to a cartel. Claims can be structured as individual claims by one or more claimants against one or more cartel members. Additionally, collective actions are possible (see 6.2 Collective Action). These claims are typically based on the tort action as outlined in Article 6:162 of the Dutch Civil Code. The threshold requirements for such an action include demonstrating a violation of the cartel prohibition, proving that the plaintiff has suffered damages, and establishing a causal link between the violation and the damages incurred. Claimants can rely on decisions made by the ACM or the European Commission to substantiate the violation, as such a decision in a civil procedure constitutes irrefutable evidence of an infringement, thereby establishing the existence of a tort.

Moreover, companies may invoke the nullity of an agreement to which they are a party, or argue that they are not obliged to comply with it, if they can demonstrate that the agreement violates the ban on cartels and leads to an appreciable restriction of competition.

The forms of relief most commonly sought in the Netherlands include compensation for damages suffered and, in certain cases, the nullification of agreements that contravene competition laws. In private civil actions, the primary focus is on compensating the harm suffered by the claimant, whereas governmental proceedings aim to punish the violation and deter future infractions.

In the Netherlands, there are several mechanisms available for claiming damages for violations of the cartel prohibition, making it a favourable jurisdiction for those seeking compensation. In addition to individual claims, collective actions are possible. These can be structured as either a single collective action or multiple separate collective actions against one or more cartel members. This is often achieved by consolidating claims from various parties who believe they have suffered damages into a claims vehicle, including through the assignment of claims.

Furthermore, another mechanism for collective redress is the Dutch Act on Collective Settlement of Mass Damages (Wet collectieve afwikkeling massaschade, orWCAM), which has been in effect since 2005. The WCAM procedure allows for a settlement agreement to be negotiated between companies involved in a cartel and a foundation or association representing the affected parties. Once the settlement agreement is established, the parties can petition the Amsterdam Court of Appeal to declare the settlement binding on all affected individuals. Injured parties retain the option to opt out of the settlement.

Moreover, a collective action can be initiated against one or more cartel members based on the Dutch Act on the Settlement of Mass Damages Claims in Collective Actions (Wet afwikkeling massaschade in collectieve actie, orWAMCA). Effective from 1 January 2020, the WAMCA significantly broadens the scope of collective actions in the Netherlands by enabling representative organisations to initiate class actions. The WAMCA applies to events that occurred on or after 15 November 2016 and provides a structured approach to handling mass damage claims. This can be particularly beneficial in cases of cartel infringements where many parties, mainly consumers, have suffered smaller damages. An important feature of the WAMCA is the opt-out mechanism, which automatically includes all potential claimants in the collective action unless they choose to opt out, except for individuals who do not reside in the Netherlands, for whom an opt-in system applies. The collective action must be initiated by an organisation – a foundation or association – with legal personality, representing the similar interests of other parties. The parties whose interests are represented must be described as a precisely defined group with similar interests. In this context, the WAMCA has introduced strict requirements on the admissibility of the representative organisation, such as representativeness, expertise, governance and funding. In cases where two or more organisations initiate a collective action under the WAMCA, the proceedings will be treated as one case, and only one organisation will be appointed by the court as the exclusive representative, becoming, in principle, the only party to perform procedural acts. Organisations not designated as exclusive representatives remain parties to the proceedings. If the nature of the collective claim, the claimants or the interests of the persons they represent warrant it, the court may choose to appoint different exclusive representatives in a collective action.

Passing-on defences are addressed within the framework of Dutch civil law. Following the implementation of EU Directive 2014/104/EU, the Dutch Civil Code allows defendants to argue that the injured party has passed on the damage caused by a competition law violation. This passing-on defence has been raised in courts before and accepted by the Supreme Court. Generally, the claimant bears the burden of proof regarding the amount of the claimed damages. Indirect purchasers can claim damages if they can demonstrate that they have suffered harm due to the cartel, typically by showing that an overcharge was passed on to them. The burden of proof in such cases lies with the indirect purchaser. The process for hearing and resolving these claims follows the same procedures as any other civil litigation in the Netherlands.

If a previous cartel investigation concerning the same facts has been performed by the ACM (or the European Commission), evidence derived from the previous investigation, such as an enforcement decision, is admissible as evidence in the subsequent investigation.

The time taken from the initiation of a claim to its resolution can vary greatly depending on factors such as the complexity of the case and the number of parties involved. Cartel damages proceedings can extend over several years before a judgment is rendered or a settlement is reached. At present, the number of cases that have been fully litigated or settled is too small to draw statistically significant conclusions.

In civil law cases, successful claimants are entitled to compensation of procedural costs (including attorneys’ fees, court fees, costs related to obtaining and preserving evidence, witness fees). However, the actual amount is determined via a points-based system, which will depend on the type of case. In general, and in cartel cases, the awarding of compensation of procedural costs will generally cover only a small part of those costs.

See 6.6 Attorneys’ Fees.

Judgments rendered by Dutch District Courts (courts of first instance) can be appealed to a Court of Appeal. Typically, Courts of Appeal conduct a comprehensive review of the case, examining both the facts and the ruling within the scope of the appeal. It is not unusual for judgments from district courts to be overturned on appeal.

The exchange of information between competing companies, whether or not facilitated by a third party, can lead to a violation of the cartel prohibition. This is generally the case when the information is sensitive to competition. Whether or not any exchange of information restricts competition depends on: i) the nature, frequency and destination of the information exchanged; and ii) the market structure. The ACM follows the same principles here as those applied under Article 101 of the TFEU.

It is important to note that, apart from direct exchanges between competitors, the exchange of competition-sensitive information between competitors through third parties was also penalised by the ACM in the cigarette manufacturers case. According to the ACM, cigarette manufacturers shared pricing information with each other via their customers, thereby restricting competition. This was confirmed by the Rotterdam District Court.

To date, there have been no specific enforcement actions publicly announced by the ACM solely targeting the use of AI or pricing algorithms in cartel offences. However, the ACM continues to develop its expertise and understanding of these technologies to ensure effective oversight and enforcement in the future. The ACM collaborates with other (Dutch) authorities to share insights and strategies for dealing with the implications of AI and algorithms.

Furthermore, in its publications outlining its focus areas for 2025, the ACM announced that it will initiate a general market investigation into computer-driven consumer pricing. This does not pertain to a specific cartel investigation, but rather involves a broader authority to examine markets, particularly when there are indications that a market is not functioning properly. In a recent publication by the ACM regarding its focus on the digital economy in 2025, the ACM further explained that this investigation is motivated by the desire to gain more insight into the use of and potential harm caused by algorithmic pricing. As prices are increasingly determined by algorithms, they respond more swiftly to supply and demand, which is not always apparent to consumers and businesses. The ACM also clarified that it will conduct this investigation in a targeted manner within a specific sector to identify the consequences. In this context, the ACM indicated that it will enhance its data-driven oversight. The publication of the findings from this investigation will make the functioning and consequences of algorithmic pricing transparent for a specific sector, which may prompt the ACM to tighten its oversight.

Monopolisation is not considered a potential cartel offence. Instead, it is addressed under the abuse of dominance prohibition.

There are no particular sectors in which the ACM consistently imposes fines, and none can be identified as likely targets for such actions in the future.

In the Netherlands, the ACM is aware of the challenges posed by the use of messaging applications and chat platforms in cartel cases, particularly concerning the preservation and potential loss of evidence. While there are no specific rules solely addressing these issues, the general principles on the co-operation obligation mentioned in 2.3 Spoliation of Evidence apply. When the ACM demands access to business information and documents, including those in messaging applications and chat platforms, the destruction or alteration of such information or documents constitutes a breach of the obligation to co-operate with the ACM, which may result in fines. For example, in 2019, the ACM imposed a fine of EUR1.84 million on a company where employees exited several WhatsApp groups and deleted chat conversations during a dawn raid.

No poach agreements and labour market allocations are considered cartel offences under the Act as they may restrict competition. The ACM has dedicated a specific paragraph to this topic in its 2019 Guidelines on collaboration between competitors. Additionally, the ACM has addressed the anti-competitive effects of such conduct in various other publications. In recent years, the ACM has primarily focused on these issues within the healthcare sector.

In the Netherlands, there is no specific trend in the number of leniency applications or ex officio investigations. 

The majority of cases investigated by the ACM involve cartels that impact the Dutch market and also fall under Article 101 of the TFEU.

In recent years, the ACM has expressed positive views regarding collaboration between companies in the area of sustainability. Companies can present proposed collaborations in this field to the ACM for informal guidance. There are several instances where this has taken place, and the ACM has published information on these cases. The ACM evaluates such collaborations based on the policy rule it has issued on this topic.

Post-pandemic inflationary and supply chain issues do not seem relevant to current cartel enforcement investigations in the Netherlands.