NETHERLANDS Law and Practice Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
7.5 Use of Messaging Applications and Chat Platforms In the Netherlands, the ACM is aware of the chal - lenges posed by the use of messaging applica - tions and chat platforms in cartel cases, particu - larly concerning the preservation and potential loss of evidence. While there are no specific rules solely addressing these issues, the general prin - ciples on the co-operation obligation mentioned in 2.3 Spoliation of Evidence apply. When the ACM demands access to business information and documents, including those in messaging applications and chat platforms, the destruc - tion or alteration of such information or docu - ments constitutes a breach of the obligation to co-operate with the ACM, which may result in fines. For example, in 2019, the ACM imposed a fine of EUR1.84 million on a company where employees exited several WhatsApp groups and deleted chat conversations during a dawn raid. 7.6 “No Poach” and Labour Market Allocation Conduct No poach agreements and labour market allo - cations are considered cartel offences under the Act as they may restrict competition. The ACM has dedicated a specific paragraph to this topic in its 2019 Guidelines on collaboration between competitors. Additionally, the ACM has addressed the anti-competitive effects of such conduct in various other publications. In recent years, the ACM has primarily focused on these issues within the healthcare sector.
7.7 Leniency v Ex Officio Investigations In the Netherlands, there is no specific trend in the number of leniency applications or ex officio investigations. 7.8 Domestic v International Investigations The majority of cases investigated by the ACM involve cartels that impact the Dutch market and also fall under Article 101 of the TFEU. 7.9 Environmental, Social and Governance (ESG) Cartels In recent years, the ACM has expressed positive views regarding collaboration between compa - nies in the area of sustainability. Companies can present proposed collaborations in this field to the ACM for informal guidance. There are several instances where this has taken place, and the ACM has published information on these cases. The ACM evaluates such collaborations based on the policy rule it has issued on this topic. 7.10 Crisis Cartels Post-pandemic inflationary and supply chain issues do not seem relevant to current cartel enforcement investigations in the Netherlands.
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