NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
examining both the facts and the ruling within the scope of the appeal. It is not unusual for judgments from district courts to be overturned on appeal. 7. Trends in Cartel Enforcement 7.1 Information Sharing as a Cartel Offence The exchange of information between compet - ing companies, whether or not facilitated by a third party, can lead to a violation of the cartel prohibition. This is generally the case when the information is sensitive to competition. Wheth - er or not any exchange of information restricts competition depends on: i) the nature, frequency and destination of the information exchanged; and ii) the market structure. The ACM follows the same principles here as those applied under Article 101 of the TFEU. It is important to note that, apart from direct exchanges between competitors, the exchange of competition-sensitive information between competitors through third parties was also penalised by the ACM in the cigarette manu - facturers case. According to the ACM, cigarette manufacturers shared pricing information with each other via their customers, thereby restrict - ing competition. This was confirmed by the Rot - terdam District Court. 7.2 Use of AI and Algorithms To date, there have been no specific enforcement actions publicly announced by the ACM solely targeting the use of AI or pricing algorithms in cartel offences. However, the ACM continues to develop its expertise and understanding of these technologies to ensure effective oversight and enforcement in the future. The ACM collaborates with other (Dutch) authorities to share insights
and strategies for dealing with the implications of AI and algorithms. Furthermore, in its publications outlining its focus areas for 2025, the ACM announced that it will initiate a general market investigation into computer-driven consumer pricing. This does not pertain to a specific cartel investigation, but rather involves a broader authority to examine markets, particularly when there are indica - tions that a market is not functioning properly. In a recent publication by the ACM regarding its focus on the digital economy in 2025, the ACM further explained that this investigation is moti - vated by the desire to gain more insight into the use of and potential harm caused by algorithmic pricing. As prices are increasingly determined by algorithms, they respond more swiftly to sup - ply and demand, which is not always apparent to consumers and businesses. The ACM also clarified that it will conduct this investigation in a targeted manner within a specific sector to iden - tify the consequences. In this context, the ACM indicated that it will enhance its data-driven oversight. The publication of the findings from this investigation will make the functioning and consequences of algorithmic pricing transparent for a specific sector, which may prompt the ACM to tighten its oversight. 7.3 Monopolisation as a Cartel Offence Monopolisation is not considered a potential cartel offence. Instead, it is addressed under the abuse of dominance prohibition. 7.4 Focus on Certain Industries/Sectors There are no particular sectors in which the ACM consistently imposes fines, and none can be identified as likely targets for such actions in the future.
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