Read and download the Dutch chapter of Lexology GTDT's latest Vertical Agreements guide, written by Sarah Beeston, Pim Jansen and Nina Korstenbroek at Van Doorne by clicking on below link.
This comprehensive chapter explains how the Dutch competition rules are applied to vertical agreements, i.e. agreements for the sale of purchase of goods or services between parties operating at different levels of the supply chain.
Beeston et al. conclude that the most significant development is the change in the Authority for Consumers and Markets (ACM)’s vision of vertical restraints. The ACM has in the past taken the view that vertical restraints, including resale price maintenance (RPM), do not necessarily harm consumer welfare and are, therefore, not an enforcement priority. The ACM had not brought a case relating to vertical restraints for nearly 20 years, but since December 2018, it is investigating several RPM cases, and in February 2019, it published new guidelines illustrating a change in thinking and in enforcement policy.
Furthermore, a recent decision relating to the deletion of material during a dawn raid illustrates the fact that the ACM is willing, also in cases of vertical restraints, to grant reductions in the fine for cooperation beyond the legal obligation to cooperate. Prior to this case, such reductions were only granted to leniency applicants in cartel cases. This is the first time the ACM has granted a fine reduction (exceeding the 10 per cent reduction for settlement) in a case relating to vertical restraints.
Given the change in the stated policy of the ACM, Beeston et al. expect many more vertical restraints cases in the upcoming period. The recognition of a right to a reduction in the fine in vertical cases if a party cooperates with the ACM could increase the chance of such cases being successfully sanctioned by ACM and not overturned by the administrative courts.