Cartels and competition

In the Netherlands, cartels are illegal. This is specified in the Dutch Competition Act (Mededingingswet). A cartel agreement is an agreement between competitors with the intention of hindering or restricting competition, or creating false competition. Cartel agreements can also exist between suppliers and buyers, for example on the retail prices. Cartels disadvantage consumers and obstruct competition.

Agreements you are not allowed to make

Price-fixing

You are not allowed to enter into agreements with competitors on prices and price quotations. For example:

• change prices in joint agreement
• offer a discount or not
• apply minimum prices
• pass on surcharges

Even just talking about prices with your competitors is forbidden.

Price agreements between suppliers and buyers

Suppliers and buyers, such as retailers, can make cooperation agreements as long as all parties are free to do business and compete:

• You are not allowed to set the retail price. You may recommend a list price or agree on a maximum retail price.
• You are not allowed to influence the purchaser to follow the recommended list price, for example by threatening to stop supply or on less favourable terms.
• You may not constantly remind your customer of the recommended retail price, for example by continuous sending messages or calling about the list price.

Check whether you comply with the rules with the Netherlands Authority for Consumers and Markets’ Recommended price check for suppliers and retailers (Autoriteit Consument en Markt, ACM, in Dutch).

Market sharing

You may not arrange with your competitors to divide the market between you. You cannot make agreements such as:

• not supplying each other’s customers
• not supplying in each other’s area
• you sell product A and your competitor sells product B
• arrange for different periods for discounts

Agreements on tendering

You are prohibited from entering into agreements with you competitor regarding tenders or discuss quotations. For example:

• to share an order
• to refrain from participation in certain tenders
• to not accept certain conditions
• price fixing at the time of the tender

Agreements on purchasing

You may not agree with your competitor on the price you will pay to a supplier, or boycott certain suppliers. Even discussing the purchase price you will pay with competitors is prohibited.

Agreements on salaries

You may not enter into agreements with competitors on employment conditions such as:

• salaries, allowances or bonuses
• taking over of personnel
• rates for freelancers

You are allowed to make agreements about employment conditions in the collective labour agreement (CAO).

Agreements on production limitation

You may not enter into agreements with your competitors to restrict production.

Cartel offence prosecution

If you violate the cartel ban, the ACM can fine you. If a cartel agreement limits trade among European Union Member States in general, the European Commission may impose fines as well.

Should you want to leave a cartel, you can report this to ACM (applying for leniency). You will not be fined or your fine may be reduced.

Reporting a cartel

If you suspect that companies are in a cartel agreement, you can tip off the ACM. You can find out more information about cartels in the guidelines regarding arrangements between competitors of ACM.

Exceptions to the cartel ban

There are exceptions to the cartel ban and in those cases you can make arrangements with competitors.

General exemption

If an agreement contributes to economic or technical progress, it might be permitted. The agreement may only cover that what is strictly necessary and is only allowed if:

• the agreements make work more efficient and thus increase prosperity or sustainability
• a fair share of the benefit from such agreements goes to the clients.
• the benefits can only be achieved by restricting competition
• there still must be room for competition

You may enter into agreements about sustainability, for example to reduce climate change or animal suffering or to protect human rights. Your agreements must meet certain conditions.

Are you a self-employed professional? Sometimes you can make agreements with other self-employed professionals. As an employer in the healthcare sector, you can make agreements with other healthcare employers.

Exemptions for small businesses

In some cases, agreements between small businesses are allowed (pdf). This is called bagatelle exemption (bagatelvrijstelling). You are allowed to make cartel agreements if:

• there are no more than 8 participating companies, and
• your annual turnover is no higher than €5.5 million (goods) or €1.1 million (all other cases).

The bagatelle exemption is also valid if entrepreneurs with a small market share make arrangements. You can only make cartel agreements if:

• your combined market share is no higher than 10%, and
• your agreement does not lead to have a negative effect on trade between member states of the European Union (EU).

It is not allowed to make any cartel agreements that could restrict trade between member states of the European Union (EU), unless:

• your combined market share is no higher than 5%, and
• your combined annual turnover is no higher than € 40 million.

Sector protection exemption

Sector protection agreements are permitted. A sector protection agreement is an agreement between the manager of a new shopping centre and an entrepreneur whose shop is in that shopping centre. It protects the shopkeeper from competition from new arrivals in the shopping centre who operate in the same sector.

Cooperation in the retail sector

Collaboration agreements are also allowed in the retail sector. Retailers can make agreements about for instance marketing, joint advertising or joint purchasing.

Exemptions under European Law

European law provides for exemptions for certain categories of research and development, technology transfer and specialisation agreements. These agreements are covered by the Block Exemption Regulation.