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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. In such cases, competitors agree to fix prices, share markets, limit output or boycot certain suppliers or buyers. Cartel agreements can also exist between suppliers and buyers, for example regarding the retail prices.
Cartel offense prosecution
If you violate the cartel ban, the Netherlands Authority for Consumers and Markets (Autoriteit Consument en Markt, ACM) can fine you. This could amount to a maximum of 10% of your total annual turnover. ACM can also impose personal fines of up to €900,000.
If a cartel agreement limits trade among European Union Member States in general, the European Commission may impose fines as well.
Reporting a cartel
If you have participated in a cartel agreement and you are the first cartel member to report this to ACM yourself (leniency request), while the cartel is under investigation by ACM, you will not be fined. If you are not the first to come forward, your fine may be still be reduced.
Have you heard a colleague making price-fixing agreements with a competitor? Or does a new supplier refuse to supply in your current supplier's region? Then you may be witnessing a cartel agreement. You can tip off the ACM (anonymously).
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.
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.