NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
Simmons & Simmons Claude Debussylaan 247 1082 MC Amsterdam The Netherlands Tel: +31 20 722 2368 Email: ekram.belhadj@simmons-simmons.com Web: www.simmons-simmons.com
1. Cartels Law and Regulation 1.1 Legal Bases Public enforcement actions regarding cartels are based on Article 6 of the Dutch Competition Act ( “the Act” ) and Article 101 of the Treaty on the Functioning of the European Union (TFEU). In fact, Article 6 of the Act is based on Article 101 of the TFEU, which prohibits the same conduct. Given the relation between these provisions, the Act refers to the TFEU for the definition of terms set out in Article 6, such as “undertaking” and “concerted practices” . Other concepts in the Act regarding cartels are generally also applied in line with EU competition law. 1.2 Regulatory/Enforcement Agencies and Penalties The Authority for Consumers & Markets (ACM) is entrusted with the public enforcement of Article 6 of the Act. When conduct also affects trade between EU member states, the ACM is empow - ered to enforce Article 101 of the TFEU as well. The ACM has the authority to investigate and sanction behaviour that contravenes these arti - cles, with its enforcement powers governed by the Act, the Establishment Act of the Author - ity for Consumers and Markets, and the Dutch General Administrative Law Act. Furthermore, several regulations, decisions and policy guide -
lines on the application of Article 6 of the Act and the powers of the ACM have been issued by the Minister of Economic Affairs. In addition, the ACM has published several documents, such as guidelines and opinions regarding the applica - tion of the cartel prohibition and procedures. Although there are no criminal penalties under Dutch law for cartel participation, companies may face civil liability, as affected parties can seek compensation for damages through civil litigation if they have suffered harm due to anti- competitive practices (see 6. Civil Litigation ). 1.3 Private Enforcement There is a private right to challenge cartel behav - iour. Affected parties can bring civil actions to seek compensation for damages caused by anti-competitive practices, either as a follow-on action after a sanction decision by the ACM or as a standalone claim (see 6. Civil Litigation ). 1.4 “Cartel Conduct” Article 6 (1) of the Act provides that agreements between undertakings, decisions by associa - tions of undertakings and concerted practices of undertakings, which have as their object or effect the restriction of competition on the Dutch market, or a part thereof, are prohibited. This prohibition encompasses various types
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