Search terms: Competition, Netherlands
The Competition Authority has confirmed its decision that former government postal service monopolist PostNL did not abuse its position on the Dutch postal service market. The authority did admit, however, that there may not be a level playing field in the postal market, given PostNL's vast network that was built up during its time as a government monopolist.
Fluctuations in food prices have caused the Competition Authority, the European Commission and other national competition authorities within the European Competition Network to examine the functioning of the food supply chain. This recently resulted in a report on competition enforcement in the food sector, which states that the authorities will continue to ensure the competitiveness of food markets.
Cable companies and telecommunications company KPN's downstream customers' opposition to the 2008 conditional first-phase approval of a glass fibre joint venture between KPN and Reggefiber was unsuccessful. The Rotterdam District Court recently annulled the Competition Authority's approval decision, but upheld its legal consequences: the setting up of the joint venture.
The Competition Authority recently imposed a fine of €18 million on four industrial laundries operating a franchise under the brand name Rentex. Surprisingly, the authority ruled that the franchise constituted a system of horizontal market-sharing arrangements between the franchise members and thus did not fall within the scope of the EU block exemption on vertical agreements.
The healthcare sector is one of the Competition Authority's focus industries, making it subject to closer investigation. The authority recently scrutinised several healthcare mergers for antitrust concerns. However, the reduction in capacity set out in the recent outline agreement between healthcare providers, health insurers and the Ministry of Health, Welfare and Sport appears to have the authority's blessing.
The Competition Authority is authorised to impose fines on individuals for competition law violations. The authority previously stated that it would take account of companies picking up the tab for employees' individual fines when deciding on a potential downward adjustment of the company's fine. Recently, it warned that a company paying fines levied on individual employees could even result in an increase in the company's fine.
The Competition Authority is keeping a close watch on the advice given by trade associations to their members. The authority has recently urged a total of five trade associations to adjust the recommendations made to their members. A €7.7 million fine was imposed on one trade association, with two of its officials being fined €50,000 and €25,000 for anti-competitive 'recommendations'.
The Competition Authority recently fined 10 window cleaners for market-sharing activities. The information on which the authority based its case was once again passed on by the public prosecutor, which prosecuted the window cleaners for tax evasion and money laundering.
The Competition Authority considers a purchaser and seller jointly responsible for notification of (sole control) acquisitions under the merger rules, and fines both purchaser and seller for failure to notify a concentration. However, this practice will soon come to an end, as the Trade and Industry Appeals Tribunal recently upheld an earlier court ruling that a seller bears no responsibility for filing a concentration meeting the turnover thresholds.
The Netherlands is the only EU member state where a collective settlement of mass claims can be declared binding on an entire class on an opt-out basis. This makes it an attractive venue for settling international mass claims. In addition, Dutch courts seem to assume jurisdiction quite easily and legal costs are capped, making it a popular country for international cartel claims.
The Supreme Court has clarified that the exception to the duration of a non-compete as laid down in the (former) block exemption for vertical agreements should be interpreted according to national law. In dispute was whether a non-compete with a 20-year duration concluded between energy company BP and the operator of a number of petrol stations could fall within the exception.
In line with settled EU case law, the Supreme Court ruled that the Leeuwarden Court of Appeal was right to qualify the termination of a distribution contract by bicycle supplier Batavus under pressure of one of its largest customers as a concerted practice having an anti-competitive object of which there was no need to consider its actual effects.
The Trade and Industry Appeals Tribunal has confirmed that high standards apply to the inter-departmental Chinese walls within the Competition Authority. The tribunal upheld the Rotterdam District Court's ruling that meddling by the authority's legal department in the investigation of an alleged competition law infringement was contrary to the Chinese walls set up between the legal department and the competition department.
The Competition Authority recently indicated that it has high hopes of increased competition in the e-book market as a result of the government's recent decision against fixed prices for e-books and the development of a digital platform on which publishers and sellers will cooperate to store and distribute e-books.
The Competition Authority recently raided the premises of mobile operators KPN, Vodafone and T-Mobile on suspicions of collusion in regard to "mobile telecommunications offerings on the Dutch consumer market" and "the division of independent sales channels". The authority had been tipped off by the press and a politician about the alleged collusion.
The Competition Authority recently fined three ship waste collection companies almost €3 million for cartel activities after it was passed information through telephone taps installed by another agency. The authority is not authorised to tap telephones when investigating possible anti-competitive practices; however, it can use recordings of telephone taps obtained by other regulators as evidence.
The Rotterdam District Court recently ruled that former employees cannot invoke the right to remain silent when questioned in relation to their former employer. The Competition Authority (NMa) had imposed record fines on three former employees for failure to cooperate in an investigation into possible anti-competitive conduct by their former employers; the court confirmed the NMa's point of view.
The Competition Authority has applied the failing firm defence principles laid down in the European Commission's horizontal guidelines in its decision to approve the acquisition of postal company Selekt Mail by competitor Sandd. As a result of the acquisition, only two players will remain active in the national market for addressed business mail
In 2013 the Competition Authority is scheduled to merge with the Independent Post and Telecommunications Authority and the Consumer Authority to create a single regulator. It is hoped that the combining of sector-specific regulation, competition enforcement and consumer protection into a single regulator will result in synergies and will be cost efficient.
The government has published a proposal to amend the bill adopted in 2010 to revise the de minimis clause. The proposal exempts hardcore infringements up to a market share of 10%. One of the main issues with the bill was whether it would constitute an infringement of EU law; the proposal to amend the bill intends to smooth this over.
The director of the Competition Authority's legal department recently stated that the authority will not align its legal professional privilege practice with the Akzo ruling of the European Court of Justice. According to the authority, denying legal professional privilege to in-house lawyers would harm their competitive position in regard to external lawyers.
Contrary to the European Commission and most other jurisdictions, the Competition Authority considers the acquirer and vendor jointly responsible for the notification of (sole control) acquisitions under the Dutch merger rules. However, fines on a vendor may soon cease, following the District Court of Rotterdam's recent decision that a vendor holds no responsibility for filing a concentration that meets Dutch turnover thresholds.
The Competition Authority recently published its 2010 annual bulletin. This bulletin precedes its annual report and provides a first insight into its activities for 2010. It appears to have been a profitable year for the authority with total fines of €137.1 million, including eight fines on individuals for competition law infringements.
The Trade and Industry Appeals Tribunal has annulled the fine imposed by the Competition Authority on CRV, a company active in the production, sale and distribution of breeding bull sperm, for abuse of its dominant position by granting certain rebates to cattle breeders. The tribunal found that the authority should have used a more effects-based approach in its assessment of the foreclosure effects of the rebates.
The Rotterdam District Court has ruled that the Competition Authority correctly dismissed easyJet's claim of discriminatory tariffs by Schiphol Airport on the basis of Article 8.25f(1) of the Aviation Act. The substantive assessment under this provision resembles that of the abuse of dominance prohibition laid down in the Competition Act and the Treaty for European Union.
The European Court of Justice's recent ruling in Akzo that communications between a company and its in-house counsel are not protected by legal professional privilege in European Commission competition investigations may lead to a review of the Dutch rules on legal professional privilege. This could mean that Competition Authority officials will be authorised to seize and use such communications in their investigations in future.
The Competition Authority seems to be spinning a bigger web: its enforcement rate is likely to increase due to more personal fines on individuals for cartel involvement, as well as suggestions to facilitate information exchange among regulatory authorities and active involvement of national competition authorities in state aid procedures.
In addition to imposing a total fine of €3 million on construction companies Janssen de Jong Infra and Aannemers-en Wegenbouwbedrijf Limburg for a cover pricing cartel, the Dutch Competition Authority recently imposed personal fines on three executives of the companies for their involvement in the cartel. It is the first time that the authority has used its power to impose personal fines on individuals for a cartel infringement.
After the European Court of Justice's preliminary ruling in T-Mobile, the Dutch Competition Authority must re-examine a decision in which it fined several mobile operators for a one-off exchange of information on reductions in dealer bonuses for sales of post-paid mobile telephone subscriptions.
The Trade and Industry Appeals Tribunal has overturned a decision of the Dutch telecommunications regulator (OPTA) on regulated access to analogue cable television distribution. OPTA has now launched a new market analysis of the television broadcasting sector to examine which cable operators may hold significant market power necessitating regulated third-party access.
The Competition Authority has qualified a non-compete obligation and a non-solicitation clause imposed on (in)direct shareholders in the context of a merger as an ancillary restraint for the duration of their shareholding in the company to be established. In addition, it considered a non-compete on two specific shareholders for a duration of two years after termination of their holding shares as ancillary.
The Competition Authority has imposed a fine of €51,000 on the National Association of General Practitioners for breaking a seal affixed by authority officials during a dawn raid. Since 2007, the authority has had similar fining powers to the European Commission where affixed seals are broken. It is the second time that the authority has imposed a fine for breaking a seal.
The Competition Authority published new dawn raid guidelines which replace the 2007 guidelines on digital investigations. It is the first time that the authority has published integral guidelines including its procedure in digital as well as analogue investigations. The European Commission already has an integral explanatory note on digital and analogue investigations.
The Trade and Industry Appeals Tribunal has ruled that the Competition Authority's approach to investigating bid rigging in the construction industry was not unreasonable. The authority fined construction companies after evidence of large-scale rigging of public bids was revealed in 2001. According to the tribunal, opting for an accelerated procedure was a well-considered choice by the relevant construction companies.
The Competition Authority has concluded that a joint venture does not automatically qualify as a notifiable full function joint venture if, for an initial start-up period only, it achieves a substantial part of its turnover with third parties. Initial large sales to third parties do not necessarily result in full functionality of the joint venture.
The Competition Authority has imposed a fine of €19 million on Dutch media company Wegener, as well as fines totalling €1.3 million on five of its executives, for failure to comply with a merger remedy made in regard of Wegener's acquisition of publishing company VNU Dagbladen in 2000. It is the first time that the authority has imposed fines on individuals for non-compliance with a merger remedy.
Two tree growers recently appealed a Competition Authority fine for their participation in a cartel. The Rotterdam District Court ruled that, having regard to the five-year limitation period and the fact that the authority's decision dated from 2007, turnover achieved before 2002 related to the time-barred part of this single and continuous infringement.
The Competition Authority recently issued informal advice confirming that the intended amendment of articles of association to provide sole control to one company over another company with effect from April 1 2013 constituted a concentration which had to be notified before the amendment, and not at the time the control could actually be exercised.
The Competition Authority can be quite persistent in its pursuit of payment of antitrust fines. The Court of Appeal recently confirmed that the director of a bankrupt construction company could be held liable for payment of an authority fine. The case arose from the company's non-payment of a fine imposed under a special accelerated procedure.
The European Commission is not alone in its quest for more protection against buyer power. The Dutch Parliament recently adopted a bill to increase the market share threshold of the national de minimis clause to provide small and medium-sized companies with more leeway to join forces against buyer power.
The Competition Authority has imposed a fine of approximately €1.4 million on UK insurer Amlin and €782,000 on the Dutch state for failure to notify Amlin's acquisition of Fortis Corporate Insurance from the state. The authority rejected the state's argument that it could not be caught by the merger control provisions of the Competition Act since it did not qualify as an 'undertaking'.
At the announcement of the Competition Authority's 2009 annual report, its chairman, Pieter Kalbfleisch, stated that the government's intended budget cuts may result in more cooperation between fellow regulators. At the same time, however, it could lead to less effective regulation.
The Amsterdam Court of Appeal has held that fines for cartel infringements imposed by either the Competition Authority or the European Commission are not deductible for corporate tax purposes. The ruling sets aside an earlier judgment by the Haarlem District Court allowing for the (partial) deductibility of European Commission fines.
The Rotterdam District Court has ruled that the Competition Authority wrongly reduced construction company Vialis's full immunity by 20% for organizing information meetings on the authority's leniency programme for its cartel members. Vialis argued that it organized the meetings merely to inform the other members of the procedural aspects of the programme, given the lack of a trade association in their sector.
The Competition Authority has published new guidelines to provide guidance to healthcare providers and health insurers on acceptable forms of cooperation. The guidelines use practical examples to explain the application of the cartel prohibition, the prohibition on abuse of dominance and concentration control to the healthcare sector.
The advocate general of the Supreme Court has ruled that cartel fines imposed by the Competition Authority are not deductible for corporate tax purposes. Despite admitting that authority fines may be partly of a non-punitive nature and thus tax deductible for that part, the advocate general excluded the tax deductibility of competition law infringements from corporate income tax legislation.
The Competition Authority has imposed total fines of over €1.3 million for failure to notify in two unrelated concentration cases. It is the second time that the authority has used its fining powers since they were expanded in October 2007. In the first case the authority discovered through media coverage that NPM Capital had neglected to notify its acquisition of shares in Buitenfood.
The Competition Authority presented its 2010-2011 agenda, in which it designated the processing, finance and business, and healthcare industries as priorities. The authority will also closely monitor the construction industry, the textbooks market and the mail industry.
The recent Competition Authority consultation paper entitled "NMa Procedure relating to analogue and digital investigations" takes into account a 2009 Hague District Court judgment against 'fishing expeditions' by the authority during dawn raids by allowing the relevant undertaking to be present during the examination of digital material which it claims is outside the scope of the authority's investigation.
The Competition Authority has rejected a complaint that postal company TNT abused its dominance by engaging in predatory pricing, tying and bundling, exclusive long-term agreements and discriminatory pricing. Since TNT covered its long-run average incremental costs with its mail delivery service, the authority considered predatory pricing unlikely and found insufficient evidence to support the other abusive conduct allegations.
The Competition Authority has imposed a fine of €138,000 on a horticulturalist which it had earlier absolved of participation in bid rigging due to insufficient evidence. The Rotterdam District Court overturned the authority's decision not to impose a fine on the horticulturalist, which had been aware of the bid rigging and should have distanced itself from it.
The Competition Authority has imposed a total fine of more than €3 million on five swimming pool chemical distributors for market sharing. The length of existence of the cartel proved the salvation of one undertaking as it sold its cartel-participating subsidiary in 2001. Similar to the European Commission, the Dutch Competition Authority is subject to a limitation period of five years for the imposition of penalties.
After record fines of €150,000 each were imposed on two former general managers in Summer 2009, the Competition Authority has imposed a fine of €100,000 on another former employee for failure to cooperate with an investigation into possible anti-competitive conduct by his former employer.
Two general statements by leniency applicants which were supported solely by their own written evidence have proved to be insufficient evidence of a construction company's participation in public bid rigging. The court held that in view of the construction company's denial, the statements constituted insufficient proof of infringement. The authority was consequently not authorized to impose a fine.
The Leeuwarden Court of Appeal has confirmed that the termination of a distribution contract by bicycle supplier Batavus under pressure from one of its largest customers constituted an anti-competitive concerted practice. The termination is a textbook example of resale price maintenance, as mentioned in the European Commission's guidelines on vertical restraints.
A judge in interlocutory proceedings has requested the Competition Authority's assistance as amicus curiae in a dispute between the Dutch importer of KIA cars and an authorized repair service. Only after the publication of the court's ruling will it become clear whether the authority used this case as its first friendly intervention.
As part of an evaluation of the Aviation Act, the minister of transport, public works and water management has requested that the Competition Authority investigate whether Amsterdam Schiphol Airport is still dominant with regard to its aviation activities, including landing and take-off fees and tariffs for handling passengers and baggage.
The Competition Authority recently carried out dawn raids at publishing company Wegener's regional newspapers PZC and BN/De Stem. Even though the number of cases in which the authority has accepted a behavioural remedy is increasing, the authority indicated in its 2007 remedy guidelines that it generally does not accept the type of behavioural remedy in Wegener's acquisistion of VNU Dagbladen.
From October 1 2009 new policy guidelines apply in regard of fines, leniency and consortium arrangements. The policy guidelines are the result of the 2008 decision of the minister of economic affairs to establish a clear distinction between policy making and enforcement.
The Competition Authority has imposed a fine of €468,000 on soft drink producer Refresco for providing incorrect and incomplete information in a 2008 notification of its acquisition of Schiffers Food. The authority can impose a fine of up to €450,000 or 1% of a company's turnover for failure to provide accurate and complete information. Refresco's fine of €468,000 represents 0.22% of its turnover in the Netherlands.
The Netherlands does not allow for criminal enforcement for competition law infringements, such as price fixing and market allocation. However, a bill introducing criminal penalties for competition law violations is being prepared. When the bill becomes law, it will be possible for individuals to be extradited from the Netherlands to countries in which competition law violation constitutes a crime.
Claimants no longer seem to await the outcome of the legislative process to seek collective redress for damages allegedly suffered from cartels. In various EU member states, including the Netherlands, private organizations have launched innovative actions in an attempt to collect damages on behalf of groups of injured parties that have allegedly suffered from cartels.
The Competition Authority, like the European Commission, is not authorized to tap telephones when investigating possible anti-competitive practices. However, the District Court of The Hague recently ruled that the public prosecutor can lawfully provide the authority with transcripts of telephone taps that are installed for criminal investigation purposes.
The Competition Authority has concluded that an intended transaction was so closely related to a 2007 transaction as to constitute a single concentration. Even though a substantial period of time had elapsed between the two transactions, the authority found the factual cooperation during this period decisive for its conclusion that the transactions constituted a single concentration.
The Competition Authority recently carried out dawn raids on several companies active in the fruit and vegetable sector to collect information on suspected price fixing and information exchange. More and more roads appear to lead to the authority as it taps new sources of information on possible competition law infringements.
The Competition Authority has imposed record fines of €150,000 each on two former general managers for failure to cooperate with its investigation into a possible competition law violation by their former employer. The case will likely go to the Rotterdam District Court as both former general managers consider ex-employees' right to remain silent a matter of principle.
Online sales and resale price maintenance are under debate in the European Commission's review of the Block Exemption Regulation on Vertical Agreements. The Dutch Competition Authority recently decided not to pursue an investigation into possible anti-competitive practices with regard to online sales. In its report the authority hinted at a more sympathetic approach to resale price maintenance.
Contrary to EU case law, the Arnhem Court of Appeal recently reiterated that the cartel prohibition laid down in Article 6 of the Competition Act is not a matter of public policy. In contrast, the European Court of Justice only recently confirmed that Article 81 of the EC Treaty is a matter of public policy, essential for the accomplishment of the tasks entrusted to the European Union, which must be automatically applied by national courts.
For the first time ever and in line with recent EU case law, the Competition Authority has fined a cartel facilitator for its contribution to the functioning of two public bid-rigging cartels in the painting business. The cartel facilitator was fined €17,000, whereas the nine participating painters received a total fine of €164,000.
Parental liability is just as hot a topic in the Netherlands as in the European Union. The Rotterdam District Court recently agreed with the Competition Authority that the acquisition of an undertaking which is active in the same cartel as the acquiring undertaking does not preclude the imposition of a fine on the acquired undertaking.
The Competition Authority recently issued the Implementation Regulation on Pension Funds, according to which Dutch pension funds qualify as undertakings. Dutch pension funds are therefore subject to cartel prohibition, the prohibition on abuse of a dominant position and the merger control rules laid down in the Competition Act.
The Rotterdam District Court recently ruled on the interdepartmental 'Chinese walls' within the Competition Authority. The court ruled that the authority's legal department's interference in the investigation of an alleged infringement was contrary to the legislature's Chinese walls between the legal department, responsible for imposing penalties, and the competition department, responsible for conducting investigations.
The District Court of Rotterdam recently ruled that the fines imposed by the Competition Authority in two construction industry fraud cases should be reduced due to the limited participation of the construction companies in the cartel. The authority imposed the fines in the context of an investigation initiated after evidence of large-scale rigging of public bids was revealed in a television broadcast in 2001.
The Rotterdam District Court recently ruled on an appeal by Solétanche Bachy France against the authority's decision to fine it €50,000 for concluding an allegedly anti-competitive cooperation agreement with HB&W. The court found that the authority should have performed a more extensive market investigation before concluding that the parties qualified as potential competitors, and referred the case back to the authority.
The minister of economic affairs has announced that the long-awaited bill introducing criminal penalties for competition law infringements will include the possibility not only to imprison individuals, but also to disqualify them. The bill will be published in the first half of 2009.
Advocate General of the European Court of Justice Juliane Kokott recently gave her opinion on a reference for a preliminary ruling by the Trade and Industry Appeals Tribunal in an appeal against fines imposed by the Competition Authority for an alleged concerted practice between four Dutch mobile telephone operators.
The Competition Authority recently published revised best practices on merger control procedures to incorporate the changes made to the Competition Act in October 2007. Among other things, the revised best practices provide for the possibility to submit remedies in Phase I and allow the parties to request a one-off extension of the Phase I period of four weeks.
Chairman of the Board of the Competition Authority Pieter Kalbfleisch took the announcement of the authority's annual bulletin - which provides initial insight into the authority's activities in 2008 - as an opportunity to warn undertakings not to use the economic crisis as a cover for illegal cartel agreements.
It is expected that during 2009 the Competition Authority will need to obtain prior approval from the minister of economic affairs for implementation measures. Further anticipated developments include the replacement of the authority's guidelines on leniency and fines with ministerial policy rules, the amendment of the de minimis thresholds and publication of a bill on criminal penalties.
On the basis of an independent study of natural gas prices in the Dutch wholesale market, the Competition Authority has concluded that gas trading company GasTerra did not charge excessive prices. However, the authority will keep a close watch on gas price developments in the Dutch wholesale market, since the 2007 price levels for small-scale end users served through retailers were relatively high.
The Competition Authority recently reconsidered fines it had imposed on a number of concrete cement producers for information exchange. In the objection procedure, it agreed with the advisory committee that strong indications of the producers being present at information exchange meetings (eg, statements, invitations and diary notes) is sufficient proof, subject to contradictory evidence.
The Haarlem District Court has ruled that fines imposed for the infringement of competition law are not deductible for corporate tax purposes. The Competition Authority had imposed a fine on a company active in the building sector for a cartel infringement committed between 1998 and 2001. The company subsequently claimed the fine as a deduction from its corporate income tax.
The Competition Authority recently imposed a fine of €269,000 on Sara Lee Household & Body for breach of a seal installed by the authority during a dawn raid. Since October 1 2007 the authority has had the expanded power to impose fines of up to €450,000 or 1% of a company’s turnover for breach of such a seal.
The Competition Authority recently imposed fines of €315,000 and €92,000 on the purchaser and seller respectively for failure to notify the acquisition of Pacton. The purchaser acquired the relevant shares in Pacton in October 2007, but the transaction was not notified to the authority until April 2008, in response to its enquiries regarding non-notification.
The Competition Authority has indicated that it does not object to arrangements for the purchase of pork which comes from male pigs that were neutered under anaesthesia. In the arrangement, all supermarkets that are a member of the Dutch Central Bureau of Food will soon no longer purchase pork coming from male pigs that were neutered without anaesthetic.
The highest administrative court for competition law cases has ruled that the Competition Authority should further substantiate allegations of infringements that have the objective of restricting competition. It follows from the decision that when arguments are put forward that alleged conduct does not concern obvious restrictions of competition, the authority should investigate the merits thereof.
Although European collecting societies may no longer prohibit each other from licensing their music portfolio outside their own territory, a Dutch court ruled recently that these societies have not, as a consequence, granted EU-wide licences to other collecting societies.
The Competition Authority has approved the acquisition of Gouden Gids, the Dutch Yellow Pages directory, by De Telefoongids, the Dutch telephone directory. The acquisition in essence will lead to a monopoly in the paper directories market. The authority has concluded that actual competition between both guides is limited and the number of advertisers that consider the two to be realistic substitutes is small.
The Competition Authority intends to expand the scope of its simplified procedure by abandoning the market share thresholds that form the basis on which concentrations qualify for the procedure. The amendment will increase the number of concentrations that can benefit from the simplified procedure, enabling the authority to use its available capacity for other purposes.
The Competition Authority has indicated that it will qualify cartel facilitators as cartel participants in line with a recent ruling of the European Court of First Instance. However, it emphasized that facilitators can benefit from full immunity under its leniency guidelines if they are the first to apply for leniency.
The Competition Authority has announced that it will initiate a Phase II investigation into a merger between two hospitals in Zeeland in order to assess further the impact of the concentration in respect of clinical and non-clinical hospital care. The authority reached a similar conclusion in November 2005.
The Court of Appeal of The Hague has ruled that a cartel between at least 12 window cleaners cannot be penalized as a criminal organization under criminal law. The window cleaners had set up a market-partitioning and price-fixing system for window-cleaning services. In addition, they were involved in tax evasion and money laundering.
The Competition Authority has used its newly acquired power to take commitment decisions for the first time. As of October 1 2007, the authority can take commitment decisions similar to those of the European Commission on the basis of Article 9 of EU Regulation 1/2003.
The Dutch Cabinet has sent its response to the European Commission white paper on damages actions for breach of the EU antitrust rules to Parliament. The response is not altogether favourable to the commission’s suggestions to facilitate consumers and businesses in claiming compensation in court in private antitrust damages actions.
In an informal opinion the Competition Authority has subscribed to the European Commission’s (revised) viewpoint that a change from negative to positive sole control does not result in a change in the quality of control. The case involved the issuing of more shares to a party which already held nearly 50% of the shares in the company.
The Competition Authority has presented a vision document on the introduction of the Single Euro Payments Area and has warned Dutch banks about the potential anti-competitive risks arising from their plans to abandon the personal identification number system for cashless payments.
The Rotterdam District Court has confirmed the Competition Authority’s fine of €17,500 on both Airfield Holding (owner of Canal+) and Chello Programming (formerly UPC Programming) for gun jumping. The authority considered that the signing of the acquisition agreement constituted a change of control and, as the acquisition was notified only after conclusion of the agreement, imposed a fine for gun jumping.
The Rotterdam District Court has ruled that the Competition Authority should have performed a more extensive market investigation before concluding that the parties to a potential anti-competitive agreement qualified as (potential) competitors. The court held that without such investigation, the authority could not decide on whether the parties were potential competitors.
The Competition Authority has published guidelines to help healthcare organizations in their notification of proposed concentrations in the geriatric care sector. As of January 1 2008, lower turnover thresholds apply to healthcare concentrations; as a result, more healthcare concentrations are likely to be notified to the authority.
The Competition Authority is confident that it will be able to expose even more cartels in the near future due to its new enforcement powers and leniency programme. Upon publication of its 2007 annual report, the authority announced that its market knowledge is growing and its cartel investigation methods are improving.
In a recent informal opinion the Competition Authority summarized its views on when an outsourcing transaction qualifies as a concentration. It reiterated that an outsourcing transaction may constitute a concentration if it involves the acquisition of control of all or part of an undertaking.
The Arnhem Court of Appeal has ruled that Eastborn, a supplier of beds, could not terminate its agreement with MF Design, a distributor, for selling its beds too cheaply online. The court concluded that the termination of MF Design's agreement was prohibited and void under Article 6 of the Competition Act (the national equivalent of Article 81 of the EC Treaty).
In a recent speech the minister of economic affairs suggested a clear separation of the Competition Authority's legislative and executive powers. The minister argued that the legislature was probably in a better position than the authority to draft the authority’s recent rules on leniency and fines.
A bill is pending which will introduce rules to the Competition Act against unfair competition practices by public authorities. To create a level playing field between undertakings and public authorities acting as undertakings, the bill introduces a number of rules of conduct for public authorities in such situations. These rules of conduct are aimed at creating competitive neutrality.
The Competition Authority has decided that a Phase II investigation into the intended acquisition of Gouden Gids (part of Truvo Nederland) by De Telefoongids (part of European Directories) is necessary. The investigation will focus on whether and to what extent online advertising opportunities exert competitive pressure on the parties' paper directories.
The Competition Authority, under administrative appeal, has upheld its decision to impose a €10,000 fine on an individual for refusing to respond to the authority’s information requests. The individual claimed the privilege against self-incrimination for his refusal to respond to the authority’s repeated information requests.
In its appraisal of a concentration between two construction companies, the Competition Authority elaborated on the allocation of market shares in joint venture cases. The concentration entailed the acquisition of Bruil Ede Groep by KWS Infra. An overlap existed in the civil engineering and infrastructure sector, as well as in asphalt production.
The Competition Authority’s attention was caught by recent announcements of simultaneous increases in beer prices at the start of the annual Dutch Carnival. It is considering developments before deciding whether to initiate an investigation. With last year's European Commission fine at the back of their minds, the start of another investigation may prove a sour deal for some of the breweries concerned.
The Trade and Industry Appeals Tribunal has ruled that the Competition Authority must always investigate whether a public authority qualifies as an undertaking in regard of certain actions. The tribunal did not agree with the authority’s previous reasoning and referred to European Court of Justice case law.
The Trade and Industry Appeals Tribunal has requested a preliminary ruling in the further appeal regarding fines imposed by the Competition Authority for alleged concerted practice between four mobile telephone operators. The tribunal considered that it could not pass judgment until the European Court of Justice had ruled on its request.
The Competition Authority recently dismissed a complaint by XS4ALL - an internet service provider - against musical-copyright fee collecting society Buma. XS4ALL accused Buma of abusing its dominant position by making it impossible for copyright owners individually to exploit their rights.
The Competition Authority has imposed a €10,000 fine on a company’s ex-employee for failure to cooperate with an investigation. The ex-employee did issue a statement to the authority. However, he subsequently refused to sign it and was unwilling to comply with further information requests. The authority therefore imposed the fine.
The Competition Authority recently revised its guidelines on digital investigations in order to include greater safeguards for companies under investigation. The revised guidelines allow companies to indicate during a raid which part of any copied information they consider private and/or privileged. That information will then be removed at the scene.
The Competition Authority has expressed its concern recently over the existence of possible cartels in the healthcare sector. In addition, lower thresholds have been introduced for concentrations between healthcare companies. The authority has also recently revised its healthcare sector guidelines.
The Court of Appeal of Leeuwarden has ruled that an obligation on a supermarket franchisee to offer its supermarket business and property for sale to the franchisor when it intends to terminate the franchise agreement has the object of restricting competition.
The Competition Authority has imposed fines in excess of €1 million on seven tree growers for their participation in a cartel. The Dutch association of tree growers escaped with a warning for issuing price recommendations to its members. Since a recent monitoring exercise showed that the association had indeed stopped, the authority refrained from pursuing further investigations into the matter.
The Competition Authority has, for the fifth consecutive year, published a consultation document seeking views on the sectors meriting specific attention in 2008. Two new sectors have been added to the usual suspects: the food and agriculture business sector and the postal market.
The Competition Authority has issued new guidelines on fine calculation and leniency applications in order to incorporate its recently acquired authority to impose fines on individuals who have instructed on or exercised de facto leadership in regard to anti-competitive practices.
The Competition Authority has dismissed a complaint accusing Apple of illegally tying its iPod portable music player to its iTunes online music store. It referred to the French Competition Authority's dismissal of a similar complaint against Apple, before concluding that Apple had not engaged in any illegal tying arrangements.
The European Commission has cleared Fortis's acquisition of ABN AMRO. The Dutch Central Bank advised the minister of finance to issue a declaration of no objection subject to a number of regulations and restrictions aimed largely at removing the operational risks of splitting up ABN AMRO. The minister of finance issued a declaration of no objection the same day.
Energy companies Nuon and Essent have terminated their merger plans, just days before the Competition Authority was due to decide on their licence application. The merger lost most of its lustre due to the Royal Decree of July 21 2007 which introduced a group prohibition on energy companies. Ironically, the decree was (partly) triggered by the Essent and Nuon merger.
The revised Competition Act has entered into force. It contains a number of significant changes in relation to enforcement, concentration control and investigatory powers, including the authorization to fine individuals and to search private homes.
The Rotterdam District Court has reduced the fines imposed by the Competition Authority on three bicycle manufacturers because an unreasonable period of time had passed under Article 6 of the European Convention on Human Rights. The passing of a period of three years between the authority's statement of objections on the alleged infringements and its decision led the court to reduce the fine by 10%.
The Competition Authority has dismissed telecommunications company KPN's complaint of abuse of a dominant position by cable companies UPC, Essent Kabelcom and Casema Multikabel. The authority also dismissed Fresh FM's claim that royalty collection organization Buma discriminated in its pricing between radio broadcasting companies and charged excessive prices.
The Rotterdam District Court has annulled the fine imposed by the Competition Authority on CRV - a company active in the production, sale and distribution of breeding bull sperm - for abuse of its dominant position by granting loyalty rebates. Among other things, the court found that the authority should have assessed the actual exclusionary effects of the quantity discount.
The Rotterdam District Court has dismissed the appeal by four companies against the Competition Authority's decision to approve the acquisition of Nozema by KPN. The court agreed with the authority that the sale of broadcasting masts by KPN sufficed to prevent the vertical integration of the parties' infrastructure and broadcasting services and, consequently, the exclusion of other transmission operators.
The Competition Authority is soliciting the public's views on its revised draft leniency guidelines. One of the new features of the draft guidelines is the possibility for individuals (eg, employees) to apply for leniency. They can do so on their own initiative or have the company do so on their behalf.
The Competition Authority has imposed a fine of €10,000 on an ex-employee for non-cooperation during an investigation. This is the first fine imposed under the increased cap for fines. The authority also recently reported to the police a break-in in a sealed room during a dawn raid.
The Competition Authority recently issued consolidated fining guidelines. The authority may raise the fine by 100% if it or any other competent authority establishes that an infringing company has previously committed the same or a similar infringement. The fine may be raised not only for recidivism in the Netherlands, but also for a similar infringement in any other country.
The Temporary Act on Media Concentrations recently came into force. The act introduces a plurality check for media concentrations. Media concentrations which meet the Competition Authority's merger control turnover thresholds must first be examined under the act's market share thresholds. If the concentration does not meet these thresholds, the authority will examine it under its merger control test.
The Rotterdam District Court has dismissed an appeal by NVV, the Dutch pig farmers' union, against the Competition Authority's clearance of Dumeco's acquisition of an abattoir. The district court found that the authority can rely on a market definition established by the European Commission in an earlier decision, unless the authority's own research proves otherwise.
The Competition Authority has approved a concentration between the only two sugar producers in the Netherlands, CSM and Cosun. According to the authority, the concentration will not result in the creation or strengthening of a dominant position on the market for the sale of sugar. The authority examined the effects of the concentration on the markets for industrial sugar and sugar for immediate consumption.
The Competition Authority has just closed a public consultation on its draft revised guidelines on remedies. In addition, the authority requested the public's views on its intention not to issue separate guidelines on the assessment of horizontal mergers, but instead to refer to the European Commission's guidelines.
The Competition Authority has recently decided on 11 appeals for administrative review in the infrastructure and civil engineering sector, bringing the total to 44 review decisions in this sector. The appeals were lodged against the fines imposed on construction companies during the accelerated (settlement) procedure.
Victims of anti-competitive behaviour should not await the findings of the European Commission with regard to their complaint before filing a claim for damages. This is the outcome of a recently published ruling by the Rotterdam District Court in which the court dismissed a damages action on the grounds that the limitation period had expired.
Competition among real estate agents is likely to increase, as the Association of Real Estate Agents - after intervention by the Competition Authority - is introducing a compliance programme. The programme will include training and workshops on competition law to prevent anti-competitive behaviour.
The Competition Authority has confirmed its decision to lower a company's leniency reduction by 10% due to the fact that the company had issued a press release on its leniency application which included unknown facts. The authority found that the company had failed to comply with the leniency condition of non-disclosure of the contents of the leniency application before the authority's decision.
Essent and Nuon have recently announced their intention to merge to form one of the 10 largest energy companies in Europe. The two companies are likely to offer remedies (eg, substantial reductions in production capacity and customer portfolios and/or facilitating switching to other suppliers) in order to obtain Competition Authority approval.
The Council of State is in favour of extending the Competition Authority's power to search to private homes. The council considers that such extension of the power to search accords with the general aim of bringing the Competition Act into line with EU competition law.
The Competition Authority has consulted the general public on the system for calculating aviation services fees (eg, luggage transport and aircraft landing charges) used by Luchthaven Schiphol, the operator of Amsterdam Schiphol Airport. The authority intends to approve Schiphol's fee-calculating system without amendment.
The Competition Authority has presented its priorities for 2007 and its 2006 annual bulletin. Among other things, the construction sector kept the authority particularly busy in 2006; the authority imposed fines totalling over €114.1 million in 13 cases.
The two largest professional organizations of architects have modified their rules of conduct after intervention by the Competition Authority. The authority's involvement in the architects' rules of conduct is part of the authority's broader investigation into the (de)regulation of liberal professions.
The Competition Authority has concluded that further investigation into the effects of the acquisition of Tiscali by KPN on the broadband internet market is necessary. The concentration would result in a 5% increase in KPN's market share on the retail and wholesale markets for broadband internet services, thereby raising KPN's market share to approximately 50% on both markets.
The Competition Authority has cleared the acquisition of joint control of Essent Kabelcom by Cinven and Warburg Pincus. The authority concluded that the stronger buying position of the companies with regard to programme providers would not negatively affect the selection of television channels provided to consumers and that the concentration would not adversely affect emerging alternatives.
Legropharma, a pharmaceutical wholesaler, has failed to convince the judge in interlocutory proceedings that Bayer terminated its contract on anti-competitive parallel import grounds. Legropharma claimed that the contract had been terminated because it supplied fellow wholesalers in defiance of Bayer's resale ban. However, the judge found that Legropharma had failed to show that Bayer imposed a resale ban.
The Trade and Industry Appeals Tribunal has upheld the nullification of the Competition Authority's conditional clearance of the takeover of Reliant Energy Europe by Nuon. The tribunal found that the authority failed to establish whether the concentration would stimulate strategic behaviour when determining whether the concentration would result in a dominant position in the electricity sector.
Akzo Nobel has asked a Dutch court for a declaratory judgment that it was not liable for the damages allegedly suffered by BASF and Basell as a result of the organic peroxides cartel. Akzo Nobel received full leniency for its participation in the cartel. Akzo Nobel's action is unprecedented in antitrust damage cases.
Competition Authority decisions are no longer free of charge. Undertakings must pay a fee ranging from €2,000 to €30,000 for decisions by the authority. The decree containing the specific procedure and exact fees has not yet been published.
In its vision document on energy mergers the Competition Authority has set out general principles for assessing such mergers. Among other things, the authority stated that it will take account of market dynamics at both the national and international level when assessing the effect of mergers on the relevant market.
The Competition Authority has rejected football club AGOVV's complaint against the licence fees and licensing conditions imposed by KNVB, the national football association. The authority held that KNVB had not abused its dominant position.
The Competition Authority has requested the public's views on the necessity and proportionality of professional conduct rules for lawyers. The (de)regulation of liberal professions is one of the authority's priorities this year. Among other things, the Second Chamber has unexpectedly passed the bill amending the Competition Act; the bill concerns the Competition Authority's powers to search private homes.
The European Competition Network has recently published a model leniency programme aimed at harmonizing the leniency programmes of the European Commission and the competition authorities of the 25 member states. The Dutch Competition Authority's current leniency guidelines will need to be adjusted to conform to the model programme.
The Rotterdam District Court has confirmed two decisions in which the Competition Authority found that CR Delta (the owner of a database) had not abused its dominant position. The court did not consider that CR Delta had refused access, as the plaintiff had non-electronic access to the data and CR Delta had offered to provide electronic access at a reasonable price.
The Rotterdam District Court has ordered the Competition Authority to reconsider the fines imposed on four mobile operators as it had failed to give substantiated reasons for its disregard of their objections. Moreover, the authority was ordered to reconsider the fines imposed on four producers' organizations in the fishing industry for their participation in agreements on catch quotas and prices.
The Rotterdam District Court has reduced fines imposed by the Competition Authority in two related cases because an unreasonable period of time had passed within the meaning of Article 6 of the European Convention on Human Rights. The court has also ruled that German producers' organizations in the fishing industry have the right to the assistance of an interpreter free of charge during sanctioning proceedings.
On May 24 2006 the Trade and Industry Appeals Tribunal ruled that a law expressly granting the former monopoly electricity supplier preferential transmission rights infringed the Second EU Internal Electricity Market Directive. Among other things, Dutch merger control was cited as a model with regard to three out of the eight practices reviewed in an International Competition Network report.
The Supreme Court has ruled that EU Block Exemption Regulation 1475/95 entails only an obligation to give two years' notice in case of termination of a distribution agreement of indefinite duration; the regulation does not provide for an obligation to give reasons. Meanwhile, research has shown that practitioners consider that the Competition Authority should clarify its use of economic analyses.
In a speech before the International Conference on the Modernization Reform of EC Antitrust Enforcement and its Effect in the National Legal Order, the chairman of the board of directors of the Netherlands Competition Authority has pointed out that there are some concerns with the way in which national courts have so far dealt with the direct application of Article 81 of the EC Treaty.
In January 2006 the Competition Authority presented its first report for 2005, a year dominated by the investigation into the construction industry. In 2005 the authority imposed penalties in 20 cases totalling over €141 million. Among other things, in its 2006 Agenda the authority designated the media and communication markets as its central areas of attention for this year.
The Competition Authority has published its Financial Sector Monitor 2005, which revealed the conclusions of its investigation into the financial services sector in 2005. Among other things, the authority has also announced that it has imposed fines of over €1 million on eight landscape gardening companies for bid-rigging agreements.
The Competition Authority has announced a reduction in the fines imposed on three bicycle manufacturers, as some breaches had not been mentioned in the statement of objections on the basis of which the companies had prepared their defence. Among other things, a tribunal has quashed a district court ruling and most of an authority decision on trade association conditions for members' supply agreements.