Netherlands: economist perspective

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Authority for Consumers & Markets is the enforcement authority for Netherlands. Read their profile.


This article is based on interviews with prominent competition law practitioners and litigators from the law firms AKD, Allen & Overy, Brande & Verheij, bureau Brandeis, Houthoff, Scott+Scott and Stek. We split the discussion into separate sections on public and private enforcement. Many of the practitioners interviewed are active in both areas. In addition, we invited the Authority for Consumers & Markets (ACM) to give its perspective and draw on its comments in the article.

Public enforcement

The Hague-based ACM is the public authority tasked with the enforcement of competition law in the Netherlands (among other things). During the past year, many practitioners perceived a contrast between the ACM’s active approach to merger control and its relative inactivity in antitrust investigations. Some commented that the ACM’s publicly stated areas of emphasis, in particular sustainability matters, were consistent with its outputs.

The ACM noted that the dynamics in the mergers and acquisitions market can result in more sanctions being imposed in one calendar year, while in another year there is more focus on mergers and acquisitions. The ACM added that it was focused on providing guidance to businesses both individually and on a sector-wide basis.

Mergers and joint ventures

Since late 2021, the ACM has been particularly active in merger control, and the trend of more Phase II investigations observed in recent years appears to have continued. In 2022, the ACM assessed 144 Phase I mergers and conducted five Phase II merger investigations – a record number.[1] Some of the lawyers saw the increase not as a result of a proliferation of complex transactions but rather owing to an increasingly interventionist approach taken by the ACM. The lawyers also noted the scrutiny that courts had placed on the evidence underlying some of the ACM’s recent prohibition decisions.

Concrete examples cited were two merger decisions from late 2021 that were overturned early this year. In March 2023, the Court of Rotterdam annulled the ACM’s prohibition in the Mediq and Eurocept merger, and less than two months later the same court annulled the ACM’s prohibition of Bergman Clinics’ acquisition of Mauritskliniek. In both cases, the court questioned the relevance of third-party views; the context in which they were collected and the qualitative conclusions drawn from them took centre stage in both judgments. The ACM regards this as unfortunate – highlighting its concerns over the eventual creation of dominant positions through inorganic growth strategies – and is evaluating the cases. It notes that in 2022, 13 out of 14 of all its decisions[2] were upheld on appeal, and it spent much capacity on appeal proceedings. It also highlights an important recent ruling in which it sided with the ACM in the cigarette manufacturers' indirect information exchange (‘hub and spokes’) matter.[3] 

Some practitioners expected to see continued judicial scrutiny of the ACM’s decision practice. In March 2023, the ACM blocked the acquisition of Talpa, a television advertising and publishing company, by the media company RTL due to concerns about the market power of the merged entity in the media sector. In doing so, it rejected a remedy proposal put forward by the parties. We understand that RTL and Talpa have decided not to pursue an appeal.

Another noteworthy development over the past year was the use of ‘gun-jumping’ fines. The ACM imposed such fines in 2022 in two separate cases involving a finding of a failure to notify, one in the healthcare sector and the other in the housebuilding sector.

Abusive practices and cartel investigations

In 2022, the ACM did not publish decisions imposing any fines for violations of competition law (neither cartel prohibition nor abuse of dominance).[4] It upheld one such fine on administrative appeal in the Samsung retail price maintenance (RPM) matter.[5] The lack of published enforcement decisions in 2022 was cited by some of the lawyers we interviewed as support for a view that, outside of merger control, the ACM preferred the provision of informal guidance to formal investigations. Others cited the consequences for a complainant of a refusal to investigate (through what are known as ‘prioritisation decisions’) as a reason for some would-be complainants to pursue the private enforcement route as an alternative to the more traditional complaint to the competition authority.

In the case of the Samsung RPM matter, Samsung was found to have influenced the online retail prices of television sets.[6] On administrative appeal, Samsung argued that the ACM failed to prove a restriction by object (vertical price restraints), maintaining that Samsung had merely recommended retail prices to wholesalers. The ACM maintained that fixing retail prices is prohibited even in the absence of contractual obligations, and ACM upheld the €39 million fine for price coordination. We understand that Samsung appealed the ACM’s decision.

Other notable developments in 2022 were Apple’s decision to change its conditions regarding the use of its own payment systems following the 2021 ACM decision imposing periodic penalty payments[7], the discontinuation of a discount scheme by the drug manufacturer Pfizer (which according to the ACM seemed to have been at odds with competition rules),[8] and the commitments given by the telecom operator KPN regarding access to its fibre-optic network.[9] Earlier this year, the ACM imposed fines on egg product companies for participating in a buyer cartel[10] and on traffic sign companies for concluding price-fixing agreements involving bids for contracts.[11] We also understand that a decision has been made on a yet-to-be published fine for vertical agreements.

Other public enforcement activities

Many lawyers saw the ACM’s stated focus areas[12] reflected in its work. In 2022, these were energy, sustainability, the digital economy, and the housing market. The sustainability topic appeared to have attracted the most attention. It is well known that the ACM has had an international impact, leading the thinking on the role of sustainability benefits in competition law enforcement for some years and has adopted views that have at times differed from those of the European Commission. The ACM sees and welcomes an increase in questions from businesses regarding the use of sustainability agreements. It will update its draft Guidelines on Sustainability Agreements to bring them into line with the Commission’s guidelines. As an example of its activity from 2022, the ACM highlighted the clearance of the garden centres’ collective boycott scheme of plant growers that use illegal pesticides.[13] It considered the case to be noteworthy as it confirms that competition rules do not aim to protect illicit competition.

Several interviewees commented that the sustainability considerations recently raised by the ACM were only loosely if at all connected with its competition law enforcement function. An example cited in multiple interviews was the ACM’s approval of a joint sustainability initiative by Coca-Cola and retailers Vrumona, Albert Heijn, and Jumbo to remove the plastic handle on multipacks of soft drinks sold at the retailers’ stores. In approving the initiative, the ACM commented that it does not negatively impact competition or consumers, endorsing the suppliers’ view that the handle does not play a role in the competitive process.[14]

Private enforcement

Private enforcement of competition law and the use of economic evidence in the prosecution and defence of damage claims have become an important part of the Dutch competition law enforcement landscape over time. Many of the firms we interviewed specialise in private enforcement. Some of those active in both private and public enforcement saw the ACM’s less active enforcement approach as a catalyst for the proliferation of private enforcement actions. We note, however, that matters arising from alleged violations of competition law outside of the Netherlands and therefore not under the ACM’s remit make up a large share of the private enforcement activity. Moreover, based on some interviewees, most private enforcement actions continue to build on earlier administrative enforcement actions by competition authorities, especially in cartel cases.

In this section, we highlight some developments in such international claims, consider the role of the relatively new Dutch collective actions regime as an enabler of mass competition claims, and discuss the way economic evidence has been received by Dutch courts in some of the recent cases.

International claims

The Netherlands has in recent years become a jurisdiction of choice for many international claimants wishing to enforce their rights to compensation for harm suffered as a result of infringements of competition law. The popularity of the Dutch forum has given rise to cases that test the Dutch courts’ willingness to assert jurisdiction, for example where a cartelised contract has been agreed upon and delivered in a non-Dutch jurisdiction, but where there is a potential ‘anchor defendant’ domiciled in the Netherlands.

An example of the latter is an action following on from the European Commission’s prohibition decision in the foreign exchange (FOREX) market.[15] In rejecting jurisdiction over many of the claimants, the District Court of Amsterdam ruled that the litigation vehicle running the claims had included a particular subsidiary of an addressee of the EC decision in its lawsuit solely in an attempt to create jurisdiction over all of the named banks. In 2020, the same court declined jurisdiction over non-Dutch defendants in the Gulf States high-voltage cables follow-on damages matter.[16]

Earlier this year, the Court of Appeal in Amsterdam formulated questions to the Court of Justice to clarify the interpretation of EU law in this respect and whether in the Greek beer case (MTB and Heineken) it can rely on the presumption of decisive influence when assessing its jurisdiction based on a ‘close connection’.[17] In the power cables and Italian cardboard cases, the question posed by the Court was whether it could rely on the Sumal test when assessing its jurisdiction based on a ‘close connection’.[18] [19]

Some of the lawyers we spoke to felt that the situation was not fully settled, as jurisdiction had been accepted by the District Court of Oost-Brabant in an action by a Brazilian claimant for damages following on from the European Commission’s CRTs decision.[20] In this matter, only one defendant was domiciled in the Netherlands.[21] Some lawyers felt that the implications of the 2021 Sumal judgment of the ECJ[22] were yet to fully feed through to case law and suggested that we could see Dutch courts – initially hesitant to interpret the Sumal judgement in its widest sense – more readily accept this jurisdiction in future. Future developments on this front appear to be watched by practitioners on both sides of the bar.

Collective actions

No seismic shifts have been observed in the use of different claim aggregation models in the Netherlands in recent years. An opt-out class action model, under the Settlement of Large-scale Losses or Damage Act (WAMCA) has been available since 2020 for recovery of monetary damages from causes of action falling after 15 November 2016.[23] [24] This cut-off was relevant last year in a judgment by the Oost-Brabant District Court in another follow-on to the CRTs cartel claim.

In the proposed CRTs class action claim, consumers joined with the Dutch consumer association Consumentenbond and a claim vehicle to ask the court for declaratory judgment against one of the addresses of the Commission’s decision. The court declared the claims inadmissible, as they were brought under the WAMCA provisions (and not individually or as assigned claims bundled together), but the alleged damage arose from events that predated the period of application of the WAMCA.

The lawyers we spoke to remarked that the majority of active WAMCA cases are not competition law cases. The assignment and power of attorney models remain popular ways of bundling claims in the Netherlands. These models have their pros and cons when contrasted with the WAMCA. Different and possibly looser restrictions concerning funding and time admissibility apply to the former models. Being designed to facilitate mass consumer claims, we would expect that courts could be more sympathetic to the application of more top-down (aggregate) and less individual claimant-specific damage quantification methods in WAMCA cases compared to other cases.

Role of economic evidence and expertise in the proceedings

During past years’ interviews, we heard that many long-running cartel damages matters were yet to clear the first, declaratory stage, or proceedings. The treatment of economic evidence by the Dutch courts was something to be seen in future years. The past year saw judgments (some interim and not all concerning the quantum of damages) in the CRTs, trucks and air cargo matters, among others, that give some indication of the direction of travel in the treatment of economic evidence.

Some interviewees remarked that it had taken quite a long time to manage cases into the quantum stage, and with hindsight, courts could have taken decisions earlier in some cases. For example, in the air cargo matter, we were told that many claims were dismissed more than a decade after filing on grounds of insufficient substantiation of purchases of cartelised services.

Some lawyers felt that the courts’ ability to process economic evidence was bound to improve over time by testing of different ways of receiving it. The UK-style agree-disagree document was tried and had generated mixed experiences. Others remarked that Dutch procedure leaves open the possibility of using a court-appointed expert instead of the exclusive reliance on party-appointed experts[25] and predicted that cases, where the courts had to dive into the economics, would see such appointments while still leaving an important role for the parties’ experts. While there were no such appointments made in the past year, the Court of Appeal of Gelderland’s appointment of experts to assess overcharge and pass-on questions in TenneT’s 2018 claim against the GIS cartel was mentioned as an example.[26]

Dutch legal counsels appear to be used to working with economic experts and often submit their expert reports as exhibits, whether as appendices to writs or in rebuttal. The Dutch system leaves open the possibility of introducing economic evidence at later stages of a case. Some lawyers remarked that this gives some more flexibility regarding the expert engagements but nevertheless requires close collaboration between legal counsel and the economic expert. Legal pleadings must often explain why a particular submission of economic expert work is made, leaving legal counsel to sometimes speak with the economist’s voice. A thorough understanding of the economic expert opinion by legal counsel is therefore critical.

Of the cases where economic expertise had made an impact, the trucks matter was mentioned multiple times. It was often raised in the context of clarity of communication, which is, of course, not unique to the delivery of economic arguments. While there was no consensus concerning the underlying economic argumentation, some lawyers raised this as an example of a successful appeal to the court’s intuition.[27]

Some of the lawyers we interviewed remarked that the need to appeal to intuition in this way would make it more difficult to run cases with less straightforward theories of harm. While the complexity of a theory of harm can be a matter of degree, an example of a more complex article 101 case could be the forex matter, where the affected market has two sides: a buy side and a sell side, and both cartelists and affected market participants may be active on both sides at different times. We understand that these issues have not been debated as the judgment referred to above was focused on the issue of jurisdiction.

The issue of the complexity of theories of harm was also raised in connection with Article 102 cases where questions or market delineation are relevant. This is a particularly interesting observation from the point of view of enforceability of abuse of dominance-related claims. What some of the lawyers saw as the ACM’s tendency to deprioritise investigation of such claims and the subsequent reluctance of some clients to raise concerns with the ACM could leave many such claims to be privately prosecuted. Successful enforcement of abuse of dominance-related claims in the Netherlands could therefore depend on intuitive articulation of multi-layered economic arguments.


Notes

[1] These cases involved hospitals Erasmus MC and IJsselland (merger withdrawn), media companies RTL and Talpa (merger blocked), waste management companies AEB and AVR (merger blocked), holiday park providers Roompot and Landal (merger cleared after remedies), and meat producers What’s Cooking and Stegeman (merger withdrawn).

[2] We understand that this number includes all appeals and not only appeals of merger decisions.

[3] ECLI:NL:RBROT:2023:6240 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBROT:2023:6240).

[4] We understand from the ACM that its prohibition decision in the egg product buyer cartel was made in December 2022 but published in May 2023. The periodic penalty payments in the dating apps matter were imposed on Apple in 2021, even though they kicked in during 2022, and went up to the maximum level of €50 million.

[5] https://www.acm.nl/nl/publicaties/besluit-op-bezwaar-boete-samsung-voor-beinvloeding-verkoopprijzen-televisies.

[6] https://www.acm.nl/en/publications/acm-fines-samsung-for-influencing-the-online-prices-of-television-sets.

[7] https://www.acm.nl/en/publications/acm-apple-changes-unfair-conditions-allows-alternative-payments-methods-dating-apps.

[8] https://www.acm.nl/en/publications/drug-manufacturer-pfizer-discontinue-its-steering-pricing-structure-enbrel-following-discussions-acm.

[9] https://www.acm.nl/en/publications/acm-sets-lower-access-tariffs-kpn-and-glaspoort-promoting-fast-internet.

[10] https://www.acm.nl/en/publications/three-egg-product-companies-fined-illegal-price-fixing-agreements.

[11] https://www.acm.nl/en/publications/fine-illegal-bid-rigging-involving-traffic-signs#:~:text=The%20Netherlands%20Authority%20for%20Consumers,the%20manufacturing%20of%20distance%20signs.

[12] https://www.acm.nl/en/publications/acm-2022-focuses-energy-and-sustainability-digital-economy-and-housing-market.

[13] https://www.acm.nl/en/publications/acm-agrees-arrangements-garden-centers-curtail-use-illegal-pesticides.

[14] https://www.acm.nl/en/publications/acm-favorable-joint-agreement-between-soft-drink-suppliers-about-discontinuation-plastic-handles.

[15] See https://globalcompetitionreview.com/article/dutch-court-guts-forex-damages-claim-over-lack-of-jurisdiction.

[16] ECLI:NL:RBAMS:2020:5882 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBAMS:2020:5882).

[17] ECLI:NL:HR:2023:660 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:hr:2023:660).

[18] ECLI:NL:GHAMS:2023:961 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHAMS:2023:961).

[19] ECLI:NL:GHAMS:2023:957 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHAMS:2023:957).

[20] See https://ec.europa.eu/competition/antitrust/cases/dec_docs/39437/39437_7332_3.pdf.

[21] ECLI:NL:RBOBR:2022:4424 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBOBR:2022:4424).

[22] C-882/19 - Sumal (https://curia.europa.eu/juris/liste.jsf?lgrec=fr&td=%3BALL&language=en&num=C-882/19&jur=C).

[23] https://globalcompetitionreview.com/hub/class-actions-hub/2022/article/netherlands-class-actions-litigation-policy-and-latest-developments.

[24] https://globalcompetitionreview.com/guide/the-settlements-guide/first-edition/article/netherlands-settling-collective-actions.

[25] We understand that party-appointed experts may sometimes appear and present their findings in court, but there is no tradition of cross-examination of the kind that exists in UK, US or Nordic proceedings.

[26] ECLI:NL:GHARL:2018:4876 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:GHARL:2018:4876).

[27] ECLI:NL:RBAMS:2022:4466 (https://uitspraken.rechtspraak.nl/#!/details?id=ECLI:NL:RBAMS:2022:4466).

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