Global Competition Law is primarly a practitioner's guide presenting the most salient aspects of the major competition laws country by country, giving an overview of their structure and most charasteristic elements.
Global Competition Law also provides insight into possible future developments in the field.

Global Competition Law

After its investigation, if the ACM reasonably suspects, upon completion of the investigation that there has been an infringement of the Act and that an administrative fine or an order subject to periodic penalty payments should be imposed to this regard, the ACM should draw-up a report (Section 59). 
Until the moment that a decision has been made, an undertaking may apply to the ACM for a decree  …

Proceedings before the ACM

The ACM may open an investigation either on the basis of a request for an exemption, a complaint by a third party or on its own initiative. Pursuant to Section 50, the officials of the ACM are responsible for supervising compliance with the provisions of the Act and the carrying out of investigations (Section 52). The investigation powers of the ACM are set forth in Section 52 of the Act. Where an infringement of the Competition Act is suspected, officers are required to notify parties that there is no obligation to make a statement before asking them to do so (Section 53). To the extent reasonably necessary to exercise their powers under the General Administrative Law Act, officers are entitled to place business premises under seal (Section 54). Where necessary in the course of an investigation, officials of the ACM may seek assistance from the police.

The ACM has released two sets of guidelines on competition investigations, one relating to the collection of digital data (ACM Werkwijze digitaal onderzoek 2014), the other to client/attorney legal privilege (ACM Werkwijze geheimhoudingsprivilege advocaat 2014), effective 12 February 2014.

As regards digital data, the new guidelines provide that inspections will no longer be carried out on-site but that the data will be collected in the premises of the undertaking and reviewed in the premises of the ACM without the presence of the undertaking or its attorneys. Beforehand, the ACM officers will however have to inform the undertaking of the object and scope of the raid. After the data is secured and before leaving the premises, the officers must also make an inventory of all files taken. The guidelines also set time-limits on the detention of undertakings' digital data, providing that after a reasonable period, such data be destroyed.

As regards client/attorney legal privilege, the 2014 guidelines specify that the ACM may not review digital data until the undertakings have had the opportunity to declare some of the collected data to be covered by legal privilege. If this faculty is used, such data will be sealed and the claim will be assessed by an independent ACM officer. Communications with both external and in-house lawyers fall under the scope of legal privilege, as long as the individuals in question are members of the bar association. On this particular issue, Dutch law differs from EU practice, which affords no protection to correspondence between undertakings and in-house counsel.

The Streamlining Act of June 2014 has granted the ACM extended powers to collect information necessary for the performance of its tasks. The 2014 Act provided that failure to comply with a request for information would be penalized with a fine of up to EUR 450,000 or 1% of the undertaking's turnover. Amendments passed on 23 December 2015 and applicable since 1 July 2016 doubled the maximum amount of fine which is now set at EUR 900,000. Further, information collected during a competition investigation may now be made available to other divisions of the ACM and vice versa, or be used in other legal proceedings. The Streamlining Act also goes against recent case law allowing former employees of the undertaking under investigation to claim the right to remain silent. From now on, this right is reserved for current staff members unless former employees are also personally under investigation and liable to be fined. In addition, the legal privilege now covers any exchange in writing between the undertaking and its lawyers, which should cancel uncertainties as to the exact scope of the protection. Finally, the availability of confidential information gathered during dawn raids is made subject to stricter requirements.

Complaints and investigations

After its investigation, if the ACM reasonably suspects, upon completion of the investigation that there has been an infringement of the Act and that an administrative fine or an order subject to periodic penalty payments should be imposed to this regard, the ACM should draw-up a report (Section 59). 

Until the moment that a decision has been made, an undertaking may apply to the ACM for a decree declaring a commitment to be binding.

In addition, on 21 December 2018, the ACM released its Settlement Guidelines, which clarify the ACM's until then informal practice. Pursuant to the guidelines, the ACM may submit a settlement deal to undertakings it intends to fine and which are prepared to admit their participation in the infringement and the fine proposed. The scheme provides, in exchange for a fine reduction of 10%, for an expedited and lighter procedure. However, settlement is not a right for the undertakings and the procedure will only apply if all of the parties accept to engage in negociations with the ACM. The benefit of settlement and leniency procedures can be combined.

Pursuant to Section 83 of the Competition Act, the ACM may impose an interim order including the imposition of periodic penalty payments if, in its provisional opinion, it is probable that the prohibition on restrictive agreements and abuse of dominance have been infringed and, in view of the interests of the undertakings affected by the infringement or in the interest of preserving actual competition, immediate action is required.

Interim relief

Claims for damages based on the General Rules of Tort are heard by ordinary courts. However, since 10 February 2017 the Netherlands have special rules relating to the compensation of competition law infringements. In effect, an Act passed on 25 January 2017 amended Book 6 of the Civil Code and the Code of Civil Procedure, in order to implement EU Directive 2014/104 on damages actions into national law. A new Section 3B relating to infringements of competition law has been inserted in Book 6 of the Civil Code, introducing new Articles 193k to 193t. According to Article 193l, a cartel is presumed to cause damage. A principle of joint and several liability is set at Article 193m specifying that if undertakings have committed an infringement of competition law by joint action, each of them will be liable for the full damage caused by the infringement. Exceptions to this rule are however provided for SMEs and leniency recipients. A limitation of liability also applies to members of the cartel who have reached a settlement with the claimant. Pursuant to Article 193p, a defendant is allowed to plead the passing on defense. However indirect purchasers may under certain conditions benefit from a presumption that passing on has occurred. The limitation period for bringing a claim is set at five years running from the end of the infringement and at a maximum of twenty years from that date depending on the claimant's acquaintance of the facts.  The Code of Civil Procedure has also been amended to provide that the courts may recquire the ACM's assistance for the determination of the amount of damage (new Article 44a(3)). Under new Article 161a, an irrevocable decision of the ACM on an infringement constitutes irrefutable evidence of the alleged infringement in a claim for damages for an infringement of competition law. Finally, new Articles 844 et seq. concern the rules for disclosure of evidence. In particular, the new rules exclude communication of leniency statements and settlement agreements (Article 846).

Global Competition Law

745. Proceedings before the ACM

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Les notions juridiques connexes

745. Proceedings before the ACM

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise