NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
of competition restrictions, including: (i) price, cost and output co-ordination; (ii) territorial and customer allocation agreements; and (iii) bid rig - ging; as well as mitigated forms such as cover pricing, any exchange of competition-sensitive information and other agreements that have as their object or effect a decrease of competition among competitors, either horizontal or verti - cal. When applying Article 6 (1), a distinction is made between conduct that has the “effect” of restricting competition and conduct that has the “object” of restricting competition, similar to the assessment under Article 101 of the TFEU. Based on settled case law, a restriction of competition has to be appreciable in order to establish an infringement of Article 6 (1). With reference to EU case law, the highest court in competition cases in the Netherlands has ruled that for restrictions by object, examining the appreciable impact of the agreement or prac - tice can be omitted. Furthermore, the concept of a single and continuous infringement is also applicable under this article. In practice, the ACM primarily addresses hori - zontal conduct that restricts competition, such as price fixing, bid rigging and market sharing. Vertical conduct, such as agreements between suppliers and purchasers, has been less fre - quently investigated by the ACM. However, in recent years, the ACM has announced increased enforcement focus on vertical conduct, such as retail price maintenance (RPM), and has fined several companies (Samsung and LG) in separate cases concerning exercising undue influence on retailer prices. The ACM has also stepped up its scrutiny of other RPM forms in vertical relationships, particularly restrictions affecting online shops.
The ACM has also increasingly stressed its scru - tiny of other forms of RPM conduct in other verti - cal relationships, especially restrictions applica - ble to online shops. 1.5 Limitation Periods The ACM’s authority to impose sanctions for infringements of Article 6 of the Act is subject to a limitation period of five years. This limitation is interrupted by any action on the part of the ACM aimed at conducting an investigation or initiating proceedings concerning the infringe - ment, as well as by any such action taken by the European Commission or another national com - petition authority (NCA) of an EU member state concerning a violation of Article 101 of the TFEU. The interruption begins on the first day on which at least one undertaking or association of undertakings involved in the violation, or one of the individuals referred to in Article 51 (2)(2°) of the Netherlands Criminal Code (principals and de facto managers), is notified in writing of the action. The limitation period restarts at the moment of interruption. In any event, the authority to conduct an inves - tigation or initiate proceedings will ultimately lapse ten years after the violation has ended, in addition to any period during which the limitation period is suspended pursuant to Article 5:45, paragraph 3 of the General Administrative Law Act, which stipulates that the limitation period is suspended if an objection or appeal is lodged against the ACM’s fine, until a final decision is rendered on the objection or appeal. 1.6 Jurisdiction Article 6 (1) of the Act concerns conduct that has an effect on the Dutch market. Therefore, the ACM’s personal jurisdiction extends to those cases in which cartel conduct has an effect on
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