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Netherlands

Competition

The Competition Authority (ACM) has published new digital dawn raid guidelines specifying how it uses its powers to inspect and copy digital media. The guidelines establish legal safeguards that the ACM inspectors will observe and provide safeguards for data covered by legal professional privilege.

A bill to enhance the deterrent effect of cartel fines is being prepared. The bill links the level of the statutory maximum fine to the duration of the infringement – instead of the company's annual turnover – with a four-year maximum duration. To prevent hefty fines, companies should ensure that their compliance programmes are sufficiently effective in detecting potential cartel infringements.

Denial appears to be the best strategy to prevent the Authority for Consumers and Markets from publishing a decision to impose a fine and thus branding a company a cartel infringer. The district court recently granted only one request to prohibit publication of a decision on a fine. The successful applicant had explicitly denied its involvement in the alleged cartel.

Companies should beware of the civil enforcement risks of anti-competitive clauses when carrying out contract negotiations. The Supreme Court recently confirmed that the cartel prohibition's nullity penalty prevents not only clauses with an anti-competitive object, but also those with an anti-competitive effect, from being converted into valid ones.

The Supreme Court has ruled that an exclusive purchasing clause had an anti-competitive object, as it was concluded between parties that had a vertical as well as horizontal relationship with each other. This shows that one cannot blindly rely on EU case law on exclusive purchasing clauses in vertical relationships: one must first understand the legal and economic context of each case.

Price signalling is back on the agenda of cartel enforcers. The Authority for Consumers and Markets concluded its mobile telecommunications sector investigation with no evidence of price fixing, but nevertheless intends to force mobile operators to refrain from making public announcements on planned price increases, which could lead to collusion. The mobile operators have committed to comply.

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