NETHERLANDS Trends and Developments Contributed by: Ekram Belhadj and Cees Dekker, Simmons & Simmons LLP
draft published in 2021. The ACM particularly advocated for a broader interpretation of the jus - tification for competition-restricting agreements under Article 6 (3) of the Dutch Competition Act (similar to Article 101 of the TFEU), focusing on ensuring that users receive a fair share of the benefits. A key issue with sustainability agreements is whether the benefits should be exclusively for the users, and to what extent they should fully benefit from the competition-restricting sustain - ability agreement. The ACM suggested that, for agreements aimed at reducing environmental damage, the benefits considered should include those to wider society. Following the European Commission (EC)’s adoption of the revised Horizontal Guidelines, which include a section on competition and sus - tainability, the ACM revised its draft guidelines to align with those of the EC. Consequently, in October 2023, the ACM introduced its policy rule “ACM’s Oversight of Sustainability Agree- ments” . This policy rule provides insight on how competition rules are applied to sustainability agreements and outlines the ACM’s approach to oversight in this area. Notably, the ACM has explicitly stated that it will generally refrain from initiating an investigation into an agreement in two scenarios. One of these involves agree - ments on environmental damage that effectively contribute to meeting an international or national standard or a specific policy goal to mitigate or prevent such damage. In recent years, the ACM has assessed various sustainability initiatives, including those in the e-commerce sector, cof - fee-cup recycling, ESG data among banks, and the clothing industry. For practical purposes, it is important that the ACM is willing to offer guidance to compa -
nies looking to form sustainability agreements, thereby providing them with the necessary legal certainty. Companies should conduct thorough competition assessments, which they can then submit to the ACM for review. Distribution and influence on distributors’ prices In recent years, the ACM has broadened its focus from primarily enforcing cartel agreements between competitors (horizontal relationships) to also scrutinising agreements and behaviours in the relationships between suppliers and their customers (vertical relationships). A few years ago, the ACM fined Samsung and LG in separate cases for infringing the cartel prohibition by – according to the ACM – unduly influencing retailers to increase or maintain pric - es for televisions. These fines were upheld by the Rotterdam District Court, which is the court of first instance for appeals against ACM decisions. While suppliers are permitted to provide non- binding price recommendations to retailers and to monitor online retail prices, the ACM found that both suppliers co-ordinated their retailers’ resale prices. Using online monitoring tools, Samsung and LG automatically tracked retail - ers’ online prices with web crawlers. If prices fell below their recommended resale prices, they contacted the retailers and urged them to raise their prices. Both suppliers also responded when retailers complained about competitors offer - ing prices they deemed too low, often inform - ing retailers that they had, or would, urge other retailers similarly. Numerous WhatsApp mes - sages and emails collected by the ACM during dawn raids showed suppliers urging retailers to adhere to recommended retail prices. Accord - ing to the ACM, retailers understood that they would not price themselves out of the market if they followed the suppliers’ prices, as Sam -
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