EXPERT GUIDE
August 2014
Competitions & Anti Trust 2014
Expert guide: Competitions & Anti Trust 2014
Netherlands
Sarah Beeston
[email protected]
+31 206 789 650
The Netherlands: Open For Business & Thinking
Outside the Box By Sarah Beeston
D
utch competition law, or
rather the application of
such law is in a process of
transition. The message is loud
and clear: the Dutch Authority for
Consumers and Markets (ACM) and
the Dutch courts are open
for business.
The ACM is the result
of
an
innovative
merger of the Dutch
Competition Authority
(“NMa”), the Dutch
Consumer Authority (“CA”) and
the Dutch Independent Post and
Telecommunications
Authority
(“OPTA”). It recently celebrated its
first anniversary. In honour of this
event, the ACM organised a conference
appropriately entitled: “Innovation
in
Oversight/Oversight
and
Innovation”. The conference attracted
speakers and participants from
all corners of the world to discuss
innovation in relation to different
aspects of markets and supervision.
The innovative structure and
approach of the ACM was also a
subject of discussion.
The ACM has in its first year been
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exploring
alternative
resolution
methods for competition concerns.
Its so called “solution-orientated”
approach to such concerns is a new
focus but is not totally novel for the
Netherlands nor for other competition
authorities.
The
predecessor of the ACM,
the NMa gained respect
amongst
its
peers
for
its
settlement
procedure adopted in
relation to the industry
wide cartels in the
construction sector. Such procedure
can be seen as the catalyst for the
EU settlement procedure. The ACM
stresses that its success should not
be measured on the basis of the fines
imposed but on the positive effects a
certain solution has on the market.
Even though the ACM can be seen
as a settlement pioneer, it has yet to
translate its open minded attitude
to settlements into an established
practice with clear-cut rules. The
cynics worry that this gives rise to
legal certainty. The optimists welcome
the chance to enter into discussion
with ACM where the result takes
precedence over form. The door of the
ACM is, more often than not, open.
The ACM also takes an innovative
approach when it comes to its focus on
sustainability. Although ACM does
not suggest that sustainability justifies
a cartel it has tried to encourage
sustainability by providing clear points
of reference for companies to test
whether the sustainability cooperation
they envisage is permitted under the
competition rules.
The solution orientated focus
and recognition of the value of
sustainability projects may give the
impression that the ACM is a softer
version of its predecessor, the NMa.
However such impression is deceptive.
ACM imposes high fines for hard core
breaches of the competition rules,
even in sectors where there is much
debate about the desirability of the
application of the rules, such as the
healthcare sector. The Dutch Ministry
of Economic Affairs has moreover
announced that it wishes to provide
the possibility for the ACM to impose
fines that are significantly higher
than the current legal maximum,
specifically 40% instead of 10% of the
turnover of the companies concerned.
A
further
innovation
in
Netherlands is the implementation
of a specific additional merger test
for health care mergers. As of 1
January 2014, proposed concentrations
which involve at least one party that
is active within the health care sector,
have to be notified to the National
Health Authority (“NZa”) for its
review. Depending on their turnover
the companies concerned also have
to file the concentration at the ACM.
This development is effectively slowing
down (if not completely breaking) the
wave of consolidation in the health
care sector, which was the aim of
the legislator.
A second important legislative
development is the Public Enterprises
(market activities) Act which provides
rules of conduct for public authorities
engaged in economic activities.
These rules seek to establish a
level playing field between private
and public companies. Originally
conceived as a form of “national state
aid” these rules are in some respects
more wide reaching. They require
authorities to charge costs for services
and goods the authorities provide on a
market (for example sports facilities).
the The Netherlands is so far the only EU
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Expert guide: Competitions & Anti Trust 2014
Netherlands
Member State that has implemented
such rules. If the rules reduce
distortion from public authorities,
the Dutch system could be an example
for other countries. The success of the
new law depends, however on several
factors, the first and foremost of
which being the enforcement by
the ACM.
The most significant development in
competition law in the Netherlands
is the increase in private enforcement
actions. Efforts from Brussels to
facilitate private enforcement, recently
culminating in the proposed EU
Directive, have led to a significant
increase in private enforcement actions
brought by individual companies
or (more often than not) claims
vehicles. The Netherlands is one of the
jurisdictions favoured by claimants
bringing international cartel damages
claims. Reasons cited include the
fact that Dutch courts accept English
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as well as Dutch submissions.
For a claims vehicle, often gathering
claims from all over Europe, this is
an important factor in its choice.
The Netherlands is also used to the
structure of assignment of claims.
In the UK, the assignment of a tort
is not (yet) legally possible. This
obviously complicates the business
of claims vehicles.
Furthermore,
procedures in the Netherlands are
relatively fast. Time limits in legal
procedures are clear and relatively
strict. Moreover the costs that the
losing party can be condemned to
pay are fixed. This is contrary to
other jurisdictions where the losing
party has to pay the actual costs made
by the winning party, including the
costs for legal assistance. This can
lead to extremely high cost awards.
An important factor shaping
such choice of claimant for the
Netherlands is the readiness of
Dutch courts to accept jurisdiction
even in cases where the Dutch
connection
is
not
evident.
A recent example is a claim relating
to a cartel in which none of the
participants was Dutch and none
of the claimants was Dutch. There
were no purchases made in the
Netherlands and Dutch law was
not applicable. The Dutch court
still accepted jurisdiction because
the parent company of one of the
cartel participants was established
in the Netherlands. Even choice of
forum and arbitration clauses in the
purchase agreements under which
the cartel goods were purchased and
which provided for a jurisdiction
other
than
the
Netherlands,
have not proved a reason for the
Dutch courts to refuse jurisdiction.
Dutch courts have given the
clear signal that they are open
for business.
Sarah Beeston heads Van Doorne’s
European and Competition Law
practice. Sarah is a member of the
Dutch and English bars and has
practiced law in Brussels and Paris.
Her international experience gives
her advice an added dimension,
highly valued by clients. Sarah’s
areas of expertise include all aspects
of competition law in the context of
strategic and policy decisions and
both public and private enforcement
procedures. Sarah is recognised in
international directories as a leader
in the field and is commended for
her strategic eye, technical skills and
genuine interest in her clients.
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