Netherlands/EU, 2007: Difference between revisions

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|- class="categorydivision"
| Merger Assessment
| Dominance
| 1
| Article 11d(1) of the Finnish Competition Act says that the Competition Council may ban a merger if it would strengthen a dominant position.
|-
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| Restriction of Competition
| 1
| Article 11d(1) of the Finnish Competition Act allows the Competition Council to ban a merger which would significantly impede competition.
|-
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| Public Interest (Pro D)
| 0
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|-
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| Public Interest (Pro Authority)
| 0
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|-
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| Other
| 0
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|-
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| Efficiency
| 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.
|-
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| 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.
 
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|-
|  
|  
| 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.
|}
|}

Revision as of 17:34, 6 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].


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”). [3]

Category Subcategory Score Comment
Scope Extraterritoriality 1 The Competition Act applies to any company or violation that has a substantial effect on Dutch competition regardless of where it occurred.[4]
Remedies Fines 1 Articles 56, 69, 71-75 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 Competition Act to bring an action for damages or ask for an injunction.[5]
Remedies Available to 3rd Parties 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.[6]
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 Voluntary 0
Mandatory 3 Article 34 requires notification of concentrations to the director general.
Pre-merger 2 Article 34 says that this notification must occur 4 weeks before the merger.
Post-merger 0
Merger Assessment Dominance 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.
Restriction of Competition 1 Articles 37(2) and 41(2) state that a merger may require further investigation if it may significantly restrict effective competition.
Public Interest (Pro D) 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.
Public Interest (Pro Authority) 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.
Other 0
Efficiency 0
Merger Assessment Dominance 1 Article 11d(1) of the Finnish Competition Act says that the Competition Council may ban a merger if it would strengthen a dominant position.
Restriction of Competition 1 Article 11d(1) of the Finnish Competition Act allows the Competition Council to ban a merger which would significantly impede competition.
Public Interest (Pro D) 0
Public Interest (Pro Authority) 0
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.[7]
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. ↑ Competition Law in the EU, at 753-791; http://www.globalcompetitionforum.org/regions/europe/Netherlands/New%20regulations%20on%20economic%20competition.pdf
  4. ↑ Bart L.P. van Reeken & Steven B Noë, "Competition Law in the Netherlands" in Competition Law in the EU 417 (Floris O.W. Vogelaar et. al., eds).
  5. ↑ See Competition Law in the EU, at 457.
  6. ↑ See Competition Law in the EU, at 457.
  7. ↑ http://www.eujapan.com/europe/seminar_tokyo_mehta1_april08.pdf
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