Netherlands/EU, 2007: Difference between revisions

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Governed by: EU law: Articles 81 and 82 of the Treaty Establishing the European Communities (Rome Treaty)<ref> Available at http://ec.europa.eu/comm/competition/antitrust/legislation/legislation.html</ref> , Regulation 1/2003 of 16 December 2002 and Law no. 1997/242 of 22 May 1997 as last amended on 1 October 2007 (hereinafter referred to as “Competition Act”)<ref>''Competition Law in the EU'', at 753-791; http://www.globalcompetitionforum.org/regions/europe/Netherlands/New%20regulations%20on%20economic%20competition.pdf</ref>.
Governed by: EU law: Articles 81 and 82 of the Treaty Establishing the European Communities (Rome Treaty)<ref> Available at http://ec.europa.eu/comm/competition/antitrust/legislation/legislation.html</ref> , Regulation 1/2003 of 16 December 2002 and Law no. 1997/242 of 22 May 1997 as last amended on 1 October 2007 (hereinafter referred to as “Competition Act”)<ref>''Competition Law in the EU'', at 753-791; http://www.globalcompetitionforum.org/regions/europe/Netherlands/New%20regulations%20on%20economic%20competition.pdf</ref>.
'''Score = 22'''
''Governed by:'' Law no. 1997/242 of 22 May 1997 as last amended on 1 October 2007(hereinafter referred to as “Competition Act”).
<ref>''Competition Law in the EU'', at 753-791; http://www.globalcompetitionforum.org/regions/europe/Netherlands/New%20regulations%20on%20economic%20competition.pdf</ref>


{| class="wikitable"
{| class="wikitable"
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| Extraterritoriality
| Extraterritoriality
| 1
| 1
| The Competition Act applies to any company or violation that has a substantial effect on Dutch competition regardless of where it occurred.<ref>Bart L.P. van Reeken & Steven B Noë, "Competition Law in the Netherlands" in <i>Competition Law in the EU</i> 417 (Floris O.W. Vogelaar et. al., eds).</ref>
| EU Law (Rome Treater) governs whether conduct has effects on trade between Member States, pursuant to Article 3 of Regulation 1/2003.


|- class="categorydivision"
|- class="categorydivision"
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| Fines
| Fines
| 1
| 1
| Articles 56, 69, 71-75 require fines for certain violations.
| Articles 56, 69, 71-75 of the Dutch Competition Act require fines for certain violations.


|-
|-
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| 3rd Party Initiation
| 3rd Party Initiation
| 1
| 1
| Third parties can rely on Articles 6(1) and 24(1) of the Competition Act to bring an action for damages or ask for an injunction.<ref><I> See Competition Law in the EU</i>, at 457.</ref>
| Third parties can rely on Articles 6(1) and 24(1) of the Dutch Competition Act to bring an action for damages or ask for an injunction.<ref><I> See Competition Law in the EU</i>, at 457.</ref>


|-
|-
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| Remedies Available to 3rd Parties
| Remedies Available to 3rd Parties
| 1
| 1
| Third parties can rely on Articles 6(1) and 24(1) of the Competition Act to bring an action for damages or ask for an injunction.<ref><I> See Competition Law in the EU</i>, at 457.</ref>
| Third parties can rely on Articles 6(1) and 24(1) of the Dutch Competition Act to bring an action for damages or ask for an injunction.<ref><I> See Competition Law in the EU</i>, at 457.</ref>
|-
|-
Line 56: Line 50:


|- class="categorydivision"
|- class="categorydivision"
| Merger Notification
| Merger Notification<ref>The National Competition Authority will assess mergers under the National Competition Act. If the concentration affects trade between the Member States, the European Commission will assess the merger under Regulation 139/2004. See the coding for the European Commission for those provisions.</ref>
| Voluntary
| Voluntary
| 0
| 0
Line 65: Line 59:
| Mandatory
| Mandatory
| 3
| 3
| Article 34 requires notification of concentrations to the director general.
| Article 34 of the Dutch Competition Act requires notification of concentrations to the director general.
|-
|-
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| Pre-merger
| Pre-merger
| 2
| 2
| Article 34 says that this notification must occur 4 weeks before the merger.
| Article 34 of the Dutch Competition Act says that this notification must occur 4 weeks before the merger.
|-
|-
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| Dominance
| Dominance
| 1
| 1
| Articles 37(2) and 41(2) state that a merger may require further investigation if there is evidence that it will create a dominant position.
| Articles 37(2) and 41(2) of the Dutch Competition Act state that a merger may require further investigation if there is evidence that it will create a dominant position.
|-
|-
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| Restriction of Competition
| Restriction of Competition
| 1
| 1
| Articles 37(2) and 41(2) state that a merger may require further investigation if it may significantly restrict effective competition.
| Articles 37(2) and 41(2) of the Dutch Competition Act state that a merger may require further investigation if it may significantly restrict effective competition.
|-
|-
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| Public Interest (Pro D)
| Public Interest (Pro D)
| 1
| 1
| Article 47(1) states that a Minister may allow an otherwise prohibited merger to go through if doing so is in the public interest.
| Article 47(1) of the Dutch Competition Act states that a Minister may allow an otherwise prohibited merger to go through if doing so is in the public interest.
|-
|-
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| Public Interest (Pro Authority)
| Public Interest (Pro Authority)
| 1
| 1
| Article 41(3) considers whether one or both of the companies is “entrusted with the operation of a service of general economic interest” in which case the Commission must decide what effect allowing or not allowing the merger would have on their performance of that service.
| Article 41(3) of the Dutch Competition Act considers whether one or both of the companies is “entrusted with the operation of a service of general economic interest” in which case the Commission must decide what effect allowing or not allowing the merger would have on their performance of that service.
|-
|-
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| 0
| 0
|  
|  
|- class="categorydivision"
|- class="categorydivision"
| Dominance
| Dominance
| Limits Access
| Limits Access
| 1
| 1
| Case law has shown this to be disallowed.
| Article 82(b) of the Rome Treaty prohibits limiting access.
|-
|-
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| Abusive Acts
| Abusive Acts
| 1
| 1
| Article 24 says that undertakings are prohibited from abusing a dominant position.<ref>Case 650, ''Hydro Energy BV v. SEP'', 26.8 1999 (concerning the refusal of third party access to the electricity network).</ref>
| Article 82 of the Rome Treaty prohibits abuse of dominant position.


|-
|-
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| Price Setting
| Price Setting
| 1
| 1
| Case Law and an adoption of the Article 82 EC has shown this to be impermissible.<ref>NMa decision re complaint 13/''Diverse klagers v. PTT Post'' (1998)(involving excessive prices charged for PO boxes); Case C-26-86, ''Akzo v. Commission'', [1991] ECR I-3359 (involving predatory pricing).</ref>
| Article 82(a) of the Rome Treaty prohibits price setting.


|-
|-
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| Discriminatory Pricing
| Discriminatory Pricing
| 1
| 1
| Discriminatory pricing and conditions are prohibited as per Article 82 EC.<ref>''See'' NMa decision re complaint 13/''Diverse klagers v. PTT Post'' (1998).</ref>
| Article 82(c) of the Rome Treaty prohibits discriminatory conditions.
|-
|
| Predatory Pricing
| 1
| "Prices are regarded as abusive if they are below average variable costs"<ref><i>Competition Law in the EU</i> at 454</ref>
|-
|-
|  
|  
| Resale Price Maintenance
| Resale Price Maintenance
| 1
| 1
| Adopts the EC position and per se bans r.p.m.<ref>''See'' Michaela Drahos, ''Convergence of the Competition Laws and Policies in the European Community'', 146 (Kluwer Law International: The Hague, 2001); see NMa decision re complaint 146/''Gemeente Dinxperlo v. IBM'' (1999) and NMa decision re exemption 524/''Postkantoren'' (1999); <i>Competition Law in the EU</i> at 445.</ref>
| Article 82(a) of the Rome Treaty prohibits resale price maintenance.
 
|-
|-
|  
|  
| Obstacles to Entry
| Obstacles to Entry
| 0
| 1
|  
| Article 82 of the Rome Treaty prohibits anti-competitive pricing schemes.
|-
|-
|  
|  
| Efficiency Defense
| Efficiency Defense
| 1
| 0
| Adopts the EC position (as per Art. 86(2) EEC) on allowing Article 24(1) of the Competition Act to be deemed inapplicable when in the interest of economic progress.<ref>''See'', ''Competition Law in the EU'', at 441; Explanatory Memorandum, at 24; NMa decision re exemption 51/''Stibat'' (1998).</ref>
|  
|- class="categorydivision"
|- class="categorydivision"
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| Price Fixing
| Price Fixing
| 1
| 1
| Adopted Article 8(2)(a) EC which has shown this to be impermissible.
| Article 81(1)(a) of the Rome Treaty prohibits price fixing.
|-
|-
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| Tying
| Tying
| 1
| 1
| Tying is impermissible in accordance with the EC and case law.<ref>NMa decision re administrative appeal 1092/I.T. ''Holland v. Microsoft''.</ref>
| Article 81(1)(e) of the Rome Treaty prohibits tying.
|-
|-
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| Market Division
| Market Division
| 1
| 1
| Adopted the EC position banning closed exclusive distribution agreements.
| Article 81 of the Rome Treaty prohibits customer allocation clauses.  
|-
|-
|  
|  
| Output Restraint
| Output Restraint
| 0
| 1
|  
| Article 81(1)(b) of the Rome Treaty prohibits limiting production.
|-
|-
|  
|  
| Market Sharing
| Market Sharing
| 0
| 1
|  
| Article 81(1)(c) of the Rome Treaty prohibits market sharing.
|-
|-
|  
|  
| Eliminating Competitors
| Eliminating Competitors
| 0
| 1
|  
| Article 81(1) of the Rome Treaty prohibits agreements that have the purpose or effect of eliminating competition.
|-
|-
|  
|  
| Collusive Tendering/Bid-Rigging
| Collusive Tendering/Bid-Rigging
| 0
| 1
|  
| Article 81 of the Rome Treaty prohibits bid-rigging.<ref>http://www.eujapan.com/europe/seminar_tokyo_mehta1_april08.pdf</ref>
|-
|-
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| Supply Refusal
| Supply Refusal
| 1
| 1
| Supply refusal is sometimes illegal, particularly in cases involving “essential facilities”.<ref>''See'' <I> Competition Law in the EU</I> at 455; NMa decision re exemption 1/''De Telegraaf v. NOS en HMG'' (1998); NMa decision complaint 650/''Hydro Energy v. Sep'' (1999)</ref>
| Article 81(1)(b) of the Rome Treaty prohibits supply refusal.
|-
|-
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| Efficiency Defense
| Efficiency Defense
| 1
| 1
| Adopts the EC position (as per Art. 86(2) EEC) on allowing Article 24(1) of the Competition Act to be deemed inapplicable when in the interest of economic progress.<ref>''See'', ''Competition Law in the EU'', at 441; Explanatory Memorandum, at 24; NMa decision re exemption 51/''Stibat'' (1998).</ref>
| Article 81(3) of the Rome Treaty allows an efficiency defense.
|}
|}

Latest revision as of 21:23, 14 August 2008

Score =

Governed by: EU law: Articles 81 and 82 of the Treaty Establishing the European Communities (Rome Treaty)[1] , Regulation 1/2003 of 16 December 2002 and Law no. 1997/242 of 22 May 1997 as last amended on 1 October 2007 (hereinafter referred to as “Competition Act”)[2].

Category Subcategory Score Comment
Scope Extraterritoriality 1 EU Law (Rome Treater) governs whether conduct has effects on trade between Member States, pursuant to Article 3 of Regulation 1/2003.
Remedies Fines 1 Articles 56, 69, 71-75 of the Dutch Competition Act require fines for certain violations.
Prison Sentences 0
Divestitures 0
Private Enforcement 3rd Party Initiation 1 Third parties can rely on Articles 6(1) and 24(1) of the Dutch Competition Act to bring an action for damages or ask for an injunction.[3]
Remedies Available to 3rd Parties 1 Third parties can rely on Articles 6(1) and 24(1) of the Dutch Competition Act to bring an action for damages or ask for an injunction.[4]
3rd Party Rights in Proceedings 1 “Interested Parties” have several rights in the course of proceedings including the right to appeal and participate in the case.
Merger Notification[5] Voluntary 0
Mandatory 3 Article 34 of the Dutch Competition Act requires notification of concentrations to the director general.
Pre-merger 2 Article 34 of the Dutch Competition Act says that this notification must occur 4 weeks before the merger.
Post-merger 0
Merger Assessment Dominance 1 Articles 37(2) and 41(2) of the Dutch Competition Act state that a merger may require further investigation if there is evidence that it will create a dominant position.
Restriction of Competition 1 Articles 37(2) and 41(2) of the Dutch Competition Act state that a merger may require further investigation if it may significantly restrict effective competition.
Public Interest (Pro D) 1 Article 47(1) of the Dutch Competition Act states that a Minister may allow an otherwise prohibited merger to go through if doing so is in the public interest.
Public Interest (Pro Authority) 1 Article 41(3) of the Dutch Competition Act considers whether one or both of the companies is “entrusted with the operation of a service of general economic interest” in which case the Commission must decide what effect allowing or not allowing the merger would have on their performance of that service.
Other 0
Efficiency 0
Dominance Limits Access 1 Article 82(b) of the Rome Treaty prohibits limiting access.
Abusive Acts 1 Article 82 of the Rome Treaty prohibits abuse of dominant position.
Price Setting 1 Article 82(a) of the Rome Treaty prohibits price setting.
Discriminatory Pricing 1 Article 82(c) of the Rome Treaty prohibits discriminatory conditions.
Resale Price Maintenance 1 Article 82(a) of the Rome Treaty prohibits resale price maintenance.
Obstacles to Entry 1 Article 82 of the Rome Treaty prohibits anti-competitive pricing schemes.
Efficiency Defense 0
Restrictive Trade Practices Price Fixing 1 Article 81(1)(a) of the Rome Treaty prohibits price fixing.
Tying 1 Article 81(1)(e) of the Rome Treaty prohibits tying.
Market Division 1 Article 81 of the Rome Treaty prohibits customer allocation clauses.
Output Restraint 1 Article 81(1)(b) of the Rome Treaty prohibits limiting production.
Market Sharing 1 Article 81(1)(c) of the Rome Treaty prohibits market sharing.
Eliminating Competitors 1 Article 81(1) of the Rome Treaty prohibits agreements that have the purpose or effect of eliminating competition.
Collusive Tendering/Bid-Rigging 1 Article 81 of the Rome Treaty prohibits bid-rigging.[6]
Supply Refusal 1 Article 81(1)(b) of the Rome Treaty prohibits supply refusal.
Efficiency Defense 1 Article 81(3) of the Rome Treaty allows an efficiency defense.

References

  1. ↑ Available at http://ec.europa.eu/comm/competition/antitrust/legislation/legislation.html
  2. ↑ Competition Law in the EU, at 753-791; http://www.globalcompetitionforum.org/regions/europe/Netherlands/New%20regulations%20on%20economic%20competition.pdf
  3. ↑ See Competition Law in the EU, at 457.
  4. ↑ See Competition Law in the EU, at 457.
  5. ↑ The National Competition Authority will assess mergers under the National Competition Act. If the concentration affects trade between the Member States, the European Commission will assess the merger under Regulation 139/2004. See the coding for the European Commission for those provisions.
  6. ↑ http://www.eujapan.com/europe/seminar_tokyo_mehta1_april08.pdf
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