Member Article

Read and download the Dutch chapter of the latest Vertical Agreements guide of Lexology GTDT, as updated by Sarah Beeston, Pim Jansen and Nina Korstenbroek. You can access the chapter by clicking on the link below.

This comprehensive chapter explains how the Dutch competition rules are applied to agreements for the sale and purchase of goods or services between parties operating at different levels of the supply chain (so-called "vertical agreements").

The authors note that the Authority for Consumers and Markets (ACM) is implementing its change in policy, as first evidenced by dawn raids at premises of producers of consumer electronics and subsequently set out in ACM guidelines of February 2019. Whereas the ACM has traditionally taken the view that vertical restraints, including resale price maintenance (RPM), do not necessarily harm consumer welfare and are, therefore, not an enforcement priority, since December 2018, it is taking a stricter approach. In the last 12 months the ACM has conducted several more dawn raids at the premises of companies active in the home-decoration sector which are suspected of RPM.

Furthermore, a decision relating to the deletion of material during a dawn raid illustrates the fact that the ACM is willing, also in cases of vertical restraints, to grant reductions in the fine for cooperation beyond the legal obligation to cooperate. Prior to this case, such reductions were only granted to leniency applicants in cartel cases. This is the first time the ACM has granted a fine reduction (exceeding the 10 per cent reduction for settlement) in a case relating to vertical restraints. The ACM is following the example of the European Commission which has published a Fact Sheet explaining its approach to cooperation and fine reduction in non-cartel cases.Given the change in policy of the ACM, the authors expect more vertical restraints cases in the coming year. If parties avail themselves of the new possibility to cooperate with the ACM in order to have a reduced fine in vertical cases this could increase the chance of such cases being successfully sanctioned by ACM and not overturned by the administrative courts. To date however only one party has done so.