Horizontal and vertical collaboration among companies is permissible, provided that it is not intended to restrict competition perceptibly and that it does not result in such restriction. Although market sharing or customer sharing and price-fixing agreements often contravene the cartel ban, assessing infringements of the cartel ban is usually done in a more balanced manner, and it is also possible to make exceptions. How can you get the very best out of collaboration?
Since sharing the market or fixing the prices with your competitor results in restrictive trade practices, it is prohibited by law. However, the cartel ban can also impede joint purchasing or force companies to build ‘Chinese walls’. Recommendations and decisions made by trade associations, entrepreneurs’ associations and cooperative societies should be assessed on the basis of the cartel ban as well. Besides these horizontal agreements, vertical agreements may come under the cartel ban too. These vertical agreements include agreements concluded between purchasers and suppliers on exclusivity, or minimum or fixed sale prices.
In the event that the cartel ban is violated, the Netherlands Authority for Consumers and Markets (ACM) and the European Commission will not hesitate to impose fines of up to 10% of the relevant companies’ global annual turnover. In addition, the ACM may impose personal fines of up to EUR 450,000 on directors or de facto managers.
Exceptions to the cartel ban
It is possible to make exceptions to the cartel ban if the commercial advantages attaching to collaboration or agreements also benefit customers and consumers. Examples include supply and distribution agreements, product development and research regulations, and agreements on sustainability and environmental protection. It is also possible to make exceptions relating to agreements between relatively small companies and companies with a limited market share.
Is it a cartel or not?
It is of immense commercial importance to assess correctly whether or not your proposed collaboration or agreements come under the cartel ban. Our specialists at Ploum can advise you on these matters. We regularly check whether commercial contracts are in compliance with competition law, and we can draw up these contracts for you as well. And we also perform audits, give training courses in competition law and set up compliance programmes with do’s and don’ts.
Investigations carried out by the ACM and the European Commission
If a supervisory authority has announced that its representatives will be visiting your company, we will prepare your organisation for this. In the event of an unexpected visit from the ACM or the European Commission, we can provide you directly with expert advice and assistance and help you through all stages of the investigation. For example, we can assess whether the ACM is allowed to make use of all the documents it has taken away. We can also submit a request for leniency with a view to reducing the fines, and attend interviews between the ACM or European Commission and your managers and staff.
There are an increasing number of civil proceedings conducted on compensation resulting from prohibited cartel agreements and cartel damage. Our lawyers at Ploum can act on your behalf in such proceedings.