1 The Legislative Framework of the Cartel Prohibition -
1.1 What is the legal basis and general nature of the cartel prohibition, e.g. is it civil and/or criminal?
The Dutch Competition Act (‘DCA’) is based on the EU competition rules. It is primarily oriented towards public enforcement and grants the Dutch competition authority, the Authority for Consumers and Markets (‘ACM’), the power to investigate and prosecute offences. Apart from this administrative route, the competition rules can also be enforced in private actions before the civil courts. Some proposals were made in the past to introduce criminal enforcement, but the Dutch legislator has announced that criminalisation of competition law is no longer on the agenda.
1.2 What are the specific substantive provisions for the cartel prohibition?
Article 6 DCA prohibits agreements between undertakings, decisions of associations of undertakings and concerted practices, which may appreciably affect competition on the Dutch market or a part thereof, in the sense that competition is prevented, restricted or distorted. The prohibition applies not only to agreements that actually have an appreciable restrictive effect, but also to agreements that have such object, regardless of whether this object is in fact realised. For the latter group of agreements (also called ‘hard-core’ restrictions such as price fixing and market sharing), it is not necessary to establish whether they have a restrictive effect on competition...
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