Dutch competition authority to impose more fines

In an interview with a Dutch financial newspaper, Martijn Snoep, the new chairman of the Dutch competition authority (ACM), announced that the authority will impose more fines relating to competition law infringements.

Who is Martijn Snoep?

In September 2018, Martijn Snoep took office as ACM chairman. Previously, Snoep was a competition lawyer in private practice. With this background, Snoep seems to have thoroughly evaluated ACM policy. Rumours that policy changes will be made have been circulating since last December. Now, these changes have been publicly announced.

Why?

In recent years, various stakeholders have criticised ACM policy for its alleged lack of enforcement, the number of fines that have been annulled by the national courts and its controversial practise of so-called 'eyebrow conversations' -- informal, private interviews organised between the ACM's previous chairman and the CEOs of alleged competition-law infringing companies. In his speech at a Dutch competition law conference in October 2018, Marc van der Woude, a judge with the General Court of the European Union, stated that a competition authority must occasionally remove its gloves. ACM appears to have taken its critics seriously.

What will it do?

The ACM has now announced it will impose more fines and focus on cases that were previously considered lower priority, such as:

• Vertical agreements: especially for resale price maintenance, (i.e. agreements between manufacturers and retailers over minimum prices) but also for agreements containing online or passive sales restrictions. This active enforcement against vertical infringements will represent a crucial change for the ACM as well as Dutch society as a whole. In short, the ACM's permissive attitude seems to have ended as it follows the example of the German competition authority (Bundeskartellamt). In recent years, the German authority has imposed many fines for vertical agreements (on chocolate, mattress and toy manufacturers).
• Tenders: always under the ACM's attention, the authority is now likely to focus on violations of competition law occurring in the course of tender procedures, such as bid rigging and cover pricing.
• Self-employed: ACM has announced plans to stand up for self-employed independent contractors by investigating exemptions for certain price fixing arrangements and launching investigations on possible agreements between undertakings that are detrimental to self-employed workers.

What's next?

Companies are advised to analyse any risks within their own organisations (e.g. regarding compliance with Dutch and EU competition law). Certain topics that have been disregarded internally in recent years may now become a point of focus for the ACM. Companies should also ensure that they are fully prepared for a visit by competition authority officials -- a so-called 'dawn raid'.

CMS has developed a special application for these visits (the CMS Dawn Raid Assistant app), which is a free mobile app that does not require a user login. This app offers specific instructions for compliance officers, legal counsels, receptionists and other stakeholders in 27 countries and 23 languages, and is available for both iOS and Android.