NETHERLANDS LAW AND PRACTICE Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
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 maxi - mum 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 simi - lar 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 concert - ed 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 position of economic strength are prohibited from abusing that dominant position. Article 1 (i) of the Dutch Competition Act defines a dominant position as a position in which one or more com - panies are able to prevent effective competition from being maintained on the Dutch market or part thereof, by giving them the power 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 domi - nance exists above 50%. Market shares are not decisive by themselves; other relevant factors may include the existence of intellectual property rights, the level of con - centration of the market and barriers to entry.
Abuse is not defined, and may consist of charg - ing unreasonably high prices, refusing to sup - ply, or charging extremely low prices (“predatory pricing”) to force competitors out of the market.
7. Intellectual Property 7.1 Patents
Under Dutch patent law, technical inventions (defined as products or operating procedures in any technological 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 obvious to a professional. • Industrial application – the invention must relate to a technically demonstrable function - ing product or production process. Patents can be applied for in the following ways: • by filing a national application with the Neth - erlands Patent Office ( Octrooicentrum Neder- land ); • 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 • by filing an application with the WIPO under the Patent Cooperation Treaty.
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