Competition.
Cartels and leniency applications
We check whether agreements between businesses are competition-proof. That is important because clauses that are contrary to the prohibition of cartels are invalid. Examples include arrangements on pricing, customer allocation, market-sharing, or non-competition clauses. The worst-case scenario is for the whole agreement to be invalid.
Both cooperation agreements between competitors and those between suppliers and customers (distribution agreements) may violate the cartel ban.
We act for companies involved in cartel investigations by the ACM or the European Commission. We assist with (multi-jurisdictional) leniency applications to both the ACM and the European Commission and act in cartel settlement negotiations.
Dawn Raids
Your company – or you personally – may be unexpectedly confronted by ACM or EC inspectors on the doorstep. Such “dawn raids” usually take place early in the morning. The inspectors then want access to your premises and records, they want to make digital copies of your computer systems, and app messages via mobile phones and they want to question you and your employees.
We are available 24/7 to assist in the event of a dawn raid. It is very important for you and your employees to know what to do – and what not to do – if this happens. We have assisted during dawn raids by both the ACM and the European Commission.
Abuse of a dominant position
Companies with a dominant position in the market are not permitted to abuse that position, for example by imposing discriminatory conditions, tying arrangements, loyalty discounts, or unfair contracts. Such abuse is prohibited. We assist both firms that face a competitive disadvantage due to the conduct of dominant players and dominant market players themselves.
Companies involved in agreements that restrict competition or abusive conduct are running a significant risk. Competition authorities such as the ACM and the European Commission have far-reaching powers, including as regards imposing penalties. Individuals can also be subject to penalties in their private capacity. In cases like this, there is often a lot at stake for the companies involved, for example damage to their reputation or claims for damages from customers.
Distribution agreements, E-commerce and Geoblocking
We ensure distribution agreements such as exclusive or selective distribution agreements, agency, franchise and license agreements (technology transfer) are in line with competition law and regulation. Practical questions involved are for example: is a supplier allowed to charge different prices to physical stores (“bricks”) and online stores (“clicks”)? What requirements can be imposed on selective distributors? When can one speak of an actual agent? Are you permitted to include a non-competition clause? All these issues are very important commercially and are affected by competition law.
The Geoblocking Regulation prohibits discrimination against consumers and (in some instances) against business, based on nationality, place of residence or establishment when they buy goods or services. Geoblocking means that an undertaking discriminates customers on the basis of their nationality or place of residence. For instance if customers do not get access to a particular website or are automatically guided to another version of the website. Or, if they cannot purchase goods and services under the same conditions. Geoblocking is usually linked to online purchases.
Customers should be allowed to purchase online under the same conditions anywhere in the EU. Undertakings that breach the rules can be fined up to 900.000 euro.
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Sector-specific regulations
Some sectors are subject not only to general competition law but also to sector-specific regulations. These include public transport (rail, bus, tram, metro), healthcare, energy, telecom, and the food sector. The ACM, NZa, NVWA, and EC also carry out sector-specific regulation. We have a great deal of experience in the field of regulation, particularly as regards healthcare, food, and public transport.
Agricultural Unfair Trading Practices Act
The Unfair Trading Practices in the Agricultural and Food Supply Chain Act (Agricultural UTP Act) came into force in the Netherlands on 1 November 2021. The purpose of the Agricultural UTP Act is to protect producers and other sellers of agricultural and food products against the abuse of purchasing power by large buyers.
Under the Agricultural UTP Act certain trading practices are prohibited.
Practices that are always prohibited (the ‘blacklist’ provisions) are: late payments; last-minute cancellations; unilateral contract amendments; refusing written confirmations; demanding unjustified payments; unlawful handling of trade secrets; or, finally, (threatening) retaliatory measures.
In addition, the following practices are prohibited – unless clearly and unambiguously agreed in writing – (the ‘grey list’ provisions): the buyer may not return unsold products without paying for them or reimbursing the disposal costs; the buyer may not require the supplier to contribute to the costs of storage, shelf space or inclusion in the product range; the buyer may not pass on discounts or promotional costs to the supplier unless the promotion and expected sales have been agreed in advance; the buyer may not charge costs for advertising or marketing; the buyer may not require the supplier to pay staff costs for the fitting-out of the sales area where the products are sold. The Netherlands Authority for Consumers and Markets (ACM) monitors compliance with the Act. It may launch an investigation, request information from market participants and carry out unannounced inspections. In the event of a breach of the law, the ACM may impose a fine (up to EUR 900,000 or, if higher, 10% of the annual (group) turnover). It may also impose orders subject to a penalty payment. In addition, disputes may be referred to a Disputes Committee, which can issue binding rulings on the admissibility of commercial practices.
Our expertise
We advise and assist businesses throughout the entire agricultural and food supply chain – both suppliers and buyers – on all aspects of the Agricultural UTP Act.
Our services include, amongst other things:
- reviewing and amending contracts and general terms and conditions;
- setting up pricing mechanisms and commercial agreements;
- strategic advice during negotiations;
- support with complaints and proceedings before the ACM and the Disputes Committee.
We have proven experience with enforcement proceedings under the Agricultural UTP Act, including our involvement in some of the earliest and most landmark cases, such as this ACM case. This experience enables us to quickly understand how the ACM, the Disputes Committee and the civil courts assess such unfair commercial practices.
Read our blog in which we discuss the Agricultural UTP Act, the first enforcement cases and recent developments in practice in greater detail.
Want to know more?
Would you like to know what the Agricultural UTP Act means in concrete terms for your business, or are you facing a (potential) dispute with a supplier or customer?
Please feel free to contact us.
State aid
The state aid rules are more directly relevant than most companies often think. State aid plays a role when a company enters into a contract with a central or local government body (for example a municipality), a university, or a public research institution. Financial transactions between local government bodies and companies quickly involve state aid elements.
When such a body provides state aid, it may constitute “prohibited state aid” under EU law. Examples may include grants, guarantees, loans, reduction of the financial burden for specific companies, and the sale or leasing of land or buildings. In many cases, the EC must be notified of the provision of state aid and must decide whether to approve it. Failure to comply with these obligations may result in the recipient (i.e., the company) needing to repay the aid provided.
We assist both companies and public authorities (central and local) in the event of state aid investigations and proceedings before both the civil courts and the European Commission.
Competition, consumer law and compliance programmes
We provide training sessions and workshops, and set up corporate compliance programmes for companies, thus raising awareness of the competition rules.
Cartel damage claims
Consumers and businesses that have sustained loss or harm due to a cartel (for example a price-fixing cartel) can claim damages. A claim can be filed independently or via a claims organisation or sector association.
Companies can institute proceedings either individually or collectively. Consumers will usually do so via a collective. Investigations and decisions by the European Commission and the ACM are the starting point for recovering damages. We assist businesses with filing civil claims for damages or defend them against such claims.