NETHERLANDS Law and Practice Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
A new Vertical Block Exemption Regulation 2022/720 (VBER) entered into effect on 1 June 2022, replacing Regulation 330/2010 which applied until 31 May 2022. The new VBER has narrowed the scope of certain safe harbours, especially for online intermediation services (platforms), with a specific focus on dual distribution and parity obligations, but also introduced new flex - ibility for both exclusive and selective distribution sys - tems and online sales restrictions. Also, on 1 July 2023 the horizontal block exemption regulations (BERs) on research and development (R&D) and specialisation agreements, as well as revised guidelines on horizontal co-operation entered into effect. The cartel prohibition is enforced by the ACM, which can impose fines of up to EUR900,000 or 10% of a company’s worldwide group turnover in the past calendar year, whichever is higher. In addition, the amount of the fine can be multiplied by the number of years that the violation lasted, up to a maximum of four years. Therefore, for infringements that have lasted four years or more, the maximum fine can be as high as 40% of the undertaking’s worldwide group turnover. In case of recidivism within five years, the maximum fine can be doubled and can therefore be as high as 80% of the undertaking’s worldwide group turnover. The maximum fine that the ACM can impose on natural persons who have played a leading role in a cartel is EUR900,000, which can be doubled if that person committed a similar violation in the preceding five years. Under EU Council Regulation No 1/2003, the ACM is required to apply EU rules (ie, Article 101 of the TFEU) if an agreement or concerted practice can affect trade between member states. Conduct allowed under EU rules cannot be prohibited under Dutch national law under such circumstances. 6.4 Abuse of Dominant Position Under Article 24 of the Dutch Competition Act and Article 102 of the TFEU, companies that have a posi - tion of economic strength are prohibited from abusing that dominant position. Article 1 (i) of the Dutch Com - petition Act defines a dominant position as a position in which one or more companies are able to prevent
effective competition from being maintained on the Dutch market or part thereof, by giving them the pow - er to behave to an appreciable extent independently of their competitors, their suppliers, their customers or end users. As a rule of thumb, a market share of less than 40% does not constitute a dominant position, but a rebuttable presumption of dominance exists above 50%. Market shares are not decisive by themselves; other relevant factors may include the existence of intellec - tual property rights, the level of concentration of the market and barriers to entry. Abuse is not defined, and may consist of charging unreasonably high prices, refusing to supply, or charging extremely low prices (“predatory pricing”) to force competitors out of the market. Under Dutch patent law, technical inventions (defined as products or operating procedures in any techno - logical field) are eligible for patent protection if they meet three material criteria. • Novelty – the product or process may not have been made public anywhere in the world before the date of submitting the patent application, not even through the activities of the inventor themselves. • Inventive step – the invention must not seem obvi - ous to a professional. • Industrial application – the invention must relate to a technically demonstrable functioning product or production process. 7. Intellectual Property 7.1 Patents Patents can be applied for in the following ways: • by filing a national application with the Netherlands Patent Office ( Octrooicentrum Nederland ); • by filing a European application with the European Patent Office (EPO) designating the Netherlands as a country for which patent protection is desired (as one of more than 30 possible countries in the EU); • by filing for a Unitary Patent, ie, a European patent with unitary effect; or
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