Competition law pertains to European and national rules. The Dutch rules largely correspond with the European rules and are embodied in the Dutch Competition Act (Mededingingswet). In principle, the European Commission enforces the European rules with the assistance of the national competition authorities and national courts.
The Netherlands Competition Authority (NMa) and the Dutch courts
enforce the Dutch rules.
What does competition law involve?
The three pillars of competition law are:
1) the prohibition
of cartels
2) the prohibition of the
abuse of a dominant position; and
3) merger
control
Competition law also includes provisions regarding the activities
of government undertakings (the 'commercial
government') and undertakings to which the government
has granted special or exclusive rights. Such undertakings often
provide public services, such as the supply of gas, water and
electricity, postal services and transport.
Violation of European law or competition law: possibility
for recouping damages?Enterprises or associations of
enterprises that violate European law or European or national
competition law can cause significant financial damages to other
organisations, enterprises and/or consumers. Damages caused by
violations of the competition rules may manifest themselves as
excessive amounts paid for prices based on cartel arrangements, for
example. Another possibility is that an enterprise in a position of
power charges too much for its products because it has no
competitors. Damages caused by violations of other rules of
European law vary greatly in nature. It is possible for a
consumer's position to be prejudiced by an enterprise acting in
violation of the consumer protection rules, for example by
including unlawful restrictions of claims for damages or
arbitration clauses in its agreements.
In the Netherlands, injured parties can seek to recoup their
damages in civil proceedings. In recent years, Dutch courts have
also been faced with increasing numbers of claims for damages based
on violations of the competition rules. Claims for damages may be
brought on grounds of a tort or of unlawful enrichment, for
example. It is possible to argue that a violation of the
competition rules, for example, constitutes a tort in respect of an
injured person or enterprise. An act constitutes unjust enrichment
if, for example, an enterprise has charged too much based on
fraudulent bidding in public
tenders, or based on
abuse of a dominant position. It is possible for agreements to
conflict with the European rules on state aid,
competition or consumer protection. In such
situations, options for declaring those agreements null and void
can be considered.
Private enforcement has been a hot topic on the European
Commission's agenda for years. Recently, the European Commission
presented new initiatives for introducing private enforcement of
European law, and in particular European competition law. The
European Commission intends to improve the possibilities for
private enforcement of competition law and other legislation by
implementing a European framework for collective redress. In this
context, collective redress essentially means that victims of acts
that distort competition can collectively seek to recoup their
damages from the violating party or parties. Dutch law already
includes a possibility for collective measures.
In the past, led by former European Commissioner Kroes, the
Commission introduced a series of initiatives aimed at making it
simpler for victims of illegal practices to take legal action.
However, experience has shown that consumers in particular
encounter substantial difficulties in terms of access,
effectiveness and affordability. Collective redress might serve to
solve these difficulties. The European framework for collective
redress will be defined in more detail during the coming period.
The European Commission is expected to present new initiatives in
the near future.
Effective enforcement of fair competition requires the
participation of individuals, and as such also of national courts.
AKD has ample experience assisting injured parties seeking to
recoup their damages as a result of violations of European law, and
in particular European competition law.
What can we offer you?
Our European and Competition Law practice group is
experienced and trained in providing support and advice on
questions of competition law. We can also assist you in respect of
private enforcement in civil proceedings before Dutch courts. We
also closely monitor European developments in the field of private
enforcement.
