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Netherlands

Competition

The Rotterdam District Court has upheld a Dutch Authority for Consumers and Markets (ACM) decision to prohibit a transaction between two rival baking companies due to a high combined market share on the Dutch rusk market. Parties thus should not count on the ACM to take earlier precedents to heart when defining relevant markets.

The European Commission is proposing a regulation on interchange fees for card-based payment transactions, which will introduce caps on domestic and cross-border interchange fees. These caps are to be set at 0.3%. This is good news for retailers and consumers, as capping fees will reduce retailers' costs and should create lower prices for goods and services.

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.

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