Article 6 of the Dutch Competition Act (the cartel prohibition) prohibits agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object (or effect) the prevention, restriction or distortion of competition in the Dutch market.
Contractual provisions and/or agreements that are restrictive of competition are null and void. This nullity can be established in civil court proceedings between private parties.
The cartel prohibition does not apply to:
- agreements in accordance with EU block exemption regulations (e.g. the EU block exemption regulation for vertical agreements or the EU block exemption regulation for technology transfer agreements)
- agreements which benefit from a block exemption determined by Dutch governmental decree
- certain agreements or practices concerning public service companies (undertakings entrusted with the supply of services of general economic interest)
- collective employment agreements and collective pension agreements in an industry
- agreements which are of minor importance. This so-called de minimis-exemption applies to agreements restrictive of competition that involve no more than eight companies whose combined annual turnover does not exceed €5,5 million (if the companies concerned are active mainly in the supply of goods), or €1,1 million (in all other cases). This exemption applies similarly to agreements between competitors whose combined market share does not exceed 10% on any of the relevant markets (if these agreements are not liable to appreciably affect trade between EU member states).
Furthermore, the Minister of Economic Affairs has issued policy guidelines in order to give more guidance to companies on the ‘dos and don’ts’ under Dutch competition law (e.g. guidelines on combination agreements and guidelines on private initiatives regarding competition and sustainability).
If a restrictive agreement cannot be categorised under one of the above-mentioned arrangements, companies can still resort to a general possibility of exception. Article 6 of the Dutch Competition Act provides a general exemption for agreements or practices whose economic and/or technical benefits outweigh their restrictions on competition and pass on a fair share of those benefits to consumers. An appeal to this exemption involves self-assessment by the companies involved in the restrictive agreement or practice.