Prevent cartel formation as a self-employed professional
This information is provided by Ministry of Economic Affairs and Climate Policy, EZK
If you work with other entrepreneurs, you are not allowed to make price agreements or divide customers. That would be cartel formation. This is prohibited under the Dutch Competition Act (Mededingingswet) because it hinders fair competition between companies. There are exceptions.
Competition act and cooperation
Collaborating with other companies can have benefits. For example, you can take on larger assignments and tenders together. You can also share operating costs, risks, and knowledge. Make sure that you comply with the Competition Act. The Competition Act prohibits cartels. You form a cartel if you consult or make agreements with another company about, for example, prices for products or services. Or about how you divide the market. Agreements within a company are allowed. Read more about the rules for competition and cartels.
The cartel ban applies to all entrepreneurs
The Competition Act applies to all entrepreneurs. So not just to legal entities, such as private limited companies (bv) or public limited companies (nv). Even if you own a sole proprietorship (freelance, zzp’er), you must comply with this law. If you work within a cooperative with other independent entrepreneurs, the cartel ban also applies.
Fine for cartel agreements
If you do make cartel agreements, you could be fined by the Netherlands Authority for Consumers and Markets (ACM). The amount of this fine will be part of your turnover. ACM looks at the seriousness of the violation, the circumstances, and the duration. You could also be fined personally for participating in a cartel or for directing a violation.
Combination agreement for collaboration in tenders
With a large tender you can submit a quote together with other companies. If you win the tender, you will carry out the assignment together. This is called a combination agreement. Combination agreements also fall under the cartel ban. This means that you may only make agreements that offer benefits to the customer. And that are necessary for the collaboration.
Use the Combination Agreements Guide
Follow the step-by-step plan in the Combination Agreements Guide (in Dutch) of the Ministry of Economic Affairs and Climate (EZK) to determine whether a combination agreement is permitted in tenders.
Exceptions to the cartel ban
There are several exceptions to the cartel ban for self-employed professionals without personnel (zzp’er). In those cases, you are allowed to make agreements with other self-employed professionals and clients. For example, about prices and other conditions. You are responsible for assessing or having assessed whether an exception applies to you.
Guideline for appointments that are allowed
ACM has drawn up a guideline for tariff agreements between self-employed professionals. The guideline applies to self-employed professionals who deliver their own work. This includes independent cleaners, translators, photographers, and parcel deliverers. Read more about the exceptions in the Guideline on tariff agreements (in Dutch) for self-employed persons on ACM.nl.
Situations where you may make arrangements with other self-employed professionals
If you are self-employed and want to earn enough to cover your living expenses (known as the social minimum, in Dutch), you can collaborate with other self-employed individuals to make an agreement that your clients will pay you accordingly. The amount can be based on the welfare benefit provided to a single person. When determining this amount, you need to consider your hourly rate, work-related costs (such as travel expenses), and insurance costs.
You can make agreements with other self-employed professionals in 2 situations:
There are a maximum of 8 self-employed people involved in the agreements, and the combined annual turnover is not higher than €1.1 million.
The combined market share of the group of self-employed professionals is not greater than 10%. The agreement must not have a negative impact on trade between EU countries.
You have been hired as a self-employed professional, but your work situation is more like that of an employee. You work under the direction of a client and alongside other employees who are on the company's payroll. Your client chooses the times and places where you work. The ACM sees this as false self-employment.
In this situation, you are allowed to negotiate the fees that your clients must pay you. You can do this with other self-employed persons, employees, employee organisations, and clients. You may also negotiate a collective labour agreement (CAO) with organisations. This can cover wages, working hours, workplace conditions, safety, and insurances.
You make agreements with other self-employed professionals that can have negative effects on competitors. For example, by setting a minimum price. You can only do this if you can prove that the agreement also has benefits. You must meet 4 conditions:
The agreement ensures that each party receives a minimum amount for their work. You must be able to prove that this leads to more or better work. For example, by paying for a mandatory training or course.
The improvement can only be achieved by making this agreement. There is no other way to do so.
Your client also benefits from the agreement. For example, because the quality of your services improves.
There is still room for competition. For example, in terms of quality, service, or speed. Or because not everyone participates in the agreement.
Situations in which you may make arrangements with clients
Does at least half of your average annual income over 1 or 2 years come from 1 client? Then you and other self-employed professionals may make agreements with the client about employment conditions. For example, the amount you charge for your work.
Do you do the same or comparable work for a client as employees on payroll? Then you and other self-employed persons may make agreements with the client about employment conditions. For example, the amount you charge for your work.
Do you need an online platform to offer your services? For example, as a delivery driver or for cleaning services? You may make agreements with other self-employed professionals with the online platform about employment conditions. For example, the amount you charge for your work.
Do you and other self-employed professionals make agreements with a major client to strengthen your position? And does the company have at least 10 employees or an annual turnover of more than €2 million? Or does the client speak on behalf of an entire sector or industry? Then you will not be fined for agreements you make with the client along with other self-employed professionals.
Is there room for negotiation with a major client? For example, because you have certain expertise or because few people do the same work as you? Then you may not make any agreements with a major client unless one of the other situations applies to you.