On this page
In the Netherlands, cartels are illegal. 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 regarding the retail prices.
Agreements you are not allowed to make
You are not allowed to enter into agreements with competitors on for instance:
- raise prices in joint agreement
- offering no discount
- apply minimum prices
- pass on surcharges
Even just talking about prices with your competitors is forbidden.
You may not arrange with your competitors to divide the market between you. For example:
- 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. Among others you may not make agreements:
- to share an order
- to refrain from participation in a tender
- to not accept certain conditions
- price fixing at the time of the tender
- to jointly carry out the assignment when this is unnecessary
Agreements on purchasing
You may not enter into agreement with your competitor on the price you will pay a supplier, or boycott certain suppliers. You may not even talk about purchase prices with competitors.
Agreements on salaries
You may not enter into agreements with competitors on employment conditions such as:
- salaries, allowances or bonusses
- taking over of personnel
- rates for freelancers
Cartel offense prosecution
If you violate the cartel ban, the Netherlands Authority for Consumers and Markets (Autoriteit Consument en Markt, 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.
Reporting a cartel
Should you want to leave a cartel you can report this to ACM (leniency request). You will not be fined or your fine may be reduced.
If you suspect that companies are in a cartel agreement, you can tip off the ACM (in Dutch).
Exceptions to the cartel ban
There are exceptions to the cartel ban.
If an agreement contributes to economic or technical progress, it might be permitted. A fair share of the benefit from such agreements must go to the clients. The agreement may only cover that what is strictly necessary, and there still must be room for competition. The ACM has guidelines on collaboration agreements for sustainable entrepreneurship (fair trade) and for the health care sector.
In some cases, agreements between small and medium businesses are allowed. This is called trivia exemption' (bagatelvrijstelling). Companies are allowed to make cartel agreements if:
- there are not more than 8 participating companies
- their annual turnover is no higher than €5.5 million (goods) or €1.1 million (all other cases)
Do you, or does another part, cross these lines? Then, you can only make cartel agreements if:
- your combined market share is no higher than 10%
- your agreement does not lead to a restriction of the intercommunal trade.
Sector protection exemption
Sector protection agreements are permitted. A sector protection agreement is an agreement between the manager of a 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.
European law provides for exemptions for certain categories of research and development, technology transfer and specialisation agreements.
If you want to check whether you are violating the ban on cartels or not, call in legal advice to find out if your collaboration agreement complies with these conditions.