Competition law

Competition law forms an important context for determination of your company’s commercial strategy. Assessment in this context should therefore not be skipped in the decision-making process on entering new commercial or strategic relationships or forms of cooperation. After all, the consequences of acting in conflict with this legal framework can be considerable. The fines of millions of euros imposed by the European Commission, the Consumer & Market Authority (ACM) and other competition authorities are regularly in the news.

We are experienced in merger notifications to competition authorities, in a wide range of sectors.

Cees Dekker

Lawyer, Partner

At home in your market

At home in your market

Nysingh has lawyers with years of experience in competition law. We advise companies, healthcare institutions and industry organisations in a wide variety of sectors. This gives us insight into the ins and outs of a range of markets.

 

Cooperation, distribution, production, R&D

  • To what extent can I influence the resale prices of my distributors?
  • How can I shape my sustainability agreements with other companies?
  • May I purchase products or services together with other companies?
  • Do I have to allow any party who wishes to do so into my distribution system?
  • How can I prevent my partner in an R&D project from using my knowledge to become more competitive?
  • How can I set up my distribution system to guarantee the quality and image of my product?
  • What information can I exchange with my competitors?
  • What restrictions can I include in license agreements?
  • To what extent is it possible to cooperate with other parties to improve the quality of products/services?

 

We see it as our task to provide practical solutions to these kinds of questions. In doing so, we not only test your ideas against competition law, but also advise you on how to achieve your goals (as far as possible) within the permitted frameworks. Our aim is to reach agreements which, when required, are enforceable and do not prove worthless on the grounds of nullity for violation of competition rules.

Mededingingsrecht

Online platforms and e-commerce

The European Commission and other competition authorities devote a great deal of attention to sales via online platforms and e-commerce, and in particular to the agreements made by companies in this respect. Online platforms and e-commerce also raise many questions for companies about what they may and may not agree, in view of the competition rules. Can sales via online platforms be prohibited? Can a distributor be prohibited from selling into someone else’s territory? Can online sales via websites aimed at specific countries be restricted? Can a distribution agreement stipulate that the distributor must have a physical store (bricks and mortar)? Can the online selling price be determined by the supplier (RPM)?

 

Suppliers and distributors have to answer these and other questions prior to concluding agreements on Internet sales, in order to prevent the agreement violating competition rules. This not only creates a risk of penalty, but also that one of the contracting parties may have the agreement terminated by the courts by invoking competition rules, with all the consequences this entails. Our competition team has expertise in the field of online platforms and e-commerce and can advise you on your strategy in this regard and on the design of agreements, among other aspects.

 

Abuse of dominant position

Where a business has a dominant position in the market, it may not abuse it. What a company itself considers to be a good commercial strategy may be considered by the ACM and the European Commission to be against the law – as they have their own approach to what they consider to be abusive, e.g. (high or low) prices, discounts and refusal to supply.

 

We can advise you in this area and discuss with you the correct starting points for permitted behaviour. Sometimes this will require economic research. If so, we can use our knowledge of competition law to properly steer such economic investigations.

Research or raid by the ACM or the European Commission

Our experience – in more than 35 cartel investigations – is that assistance from the start of an investigation initiated by the ACM or the European Commission is of great importance. It is important to obtain an assessment of the company’s position as soon as possible and to define its strategy. It is therefore important to request legal assistance, even during a raid or announced company visit by the ACM or the European Commission. Moreover, it is wise to be prepared for a raid by the European Commission or the ACM. We can work with you to draw up a scenario for raids and provide you with further information about the course of events during such a raid.

 

Leniency in the event of participation in a cartel

If you discover that your company has participated in anti-competitive agreements (a cartel), it is wise to consider applying for leniency to the ACM or the European Commission during a cartel investigation or before. The provision of information to the competition authority may result in immunity or a reduction of the fine.

 

An application for leniency can also be considered if it appears that you have acquired a company that has committed cartel infringements in the past. As an acquiring company, you may be held liable for those past infringements. When filing an application for leniency, consideration should be given to the authority to which the application is submitted, what information is provided, whether an application is first submitted anonymously and what the consequences of the application may be. We will be happy to advise you on this.

Compliance

For larger companies, in particular, it is not always easy to ensure compliance with competition law. Employees in ‘sensitive’ positions will have to be especially clear about what is and what is not allowed in agreements with customers, suppliers, resellers or competitors. A compliance programme carried out by management can prevent violations of European and Dutch competition law and, in the event of a violation, may be invoked as a mitigating circumstance before the competition authorities.

 

Compliance programmes are tailor-made. We will work with you to find out for which employees a compliance programme makes sense, how procedures within your company can be set up in such a way that the risk of violations is kept to a minimum and what the consequences should be of an identified violation. We have set up compliance programmes within various companies.

Action against cartels and restrictions of competition by other undertakings

Competition law does not only restrict your freedom. It also gives you the opportunity to take action against restrictions of competition that concern you. Do you wish the ACM or the European Commission to take action against a particular company (your competitor, supplier or customer)? For example, because your customer holds a dominant position, wants to impose unreasonably low purchase prices on you and you do not have any possibility to switch to other customers? Or because you notice that your competitors are allocating markets, or your supplier advises you, ‘without obligation’, to apply certain sales prices, but in fact forces you to apply those prices? Or because you notice that a competitor is preventing you from entering a market?

 

Such possible infringements of competition law can be dealt with by submitting an (anonymous) complaint to the ACM or the European Commission. In doing so, it is important to get these authorities to actually investigate such conduct, as many complaints are rejected as lacking priority.

 

We can discuss with you whether filing a complaint is the right way forward or whether, for example, instituting (summary) proceedings before an ordinary court is a more efficient method of achieving healthy, competitive conditions.

Mergers, acquisitions and joint ventures

We are experienced in merger notifications to competition authorities, in a wide range of sectors (e.g. food, transport, shipbuilding, retail, automotive, healthcare and energy). We can also take care of notifications to competition authorities in other countries.

 

Notification of a merger, acquisition or creation of a joint venture involves, in particular, convincing the authorities that a market operates in a particular way. Indeed, the assessment of the relevant market is decisive in determining whether or not market concentration substantially restricts competition (and thus whether or not the authorities authorise such concentration).

Objections to mergers or acquisitions

We can also assist you if concentration of your competitors, suppliers or customers creates a dominant position. As the business concerned, you can then raise your concerns about such concentration and try to persuade the competition authorities not to authorise market concentration, or to make such authorisation subject to certain conditions (e.g. divestment of a business or certain activity). It is important that expected developments in the market are properly brought to the attention of the authorities, so that your concerns are adequately addressed.

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