Dutch
Competition Act
Act of 22 May 1997, Providing New Rules for Economic Competition (Competition Act)
Translations made by the Dutch Competition Authority and adjusted by DCL on account of amendments which entered into force after 1 July 2009, including those that will become effective as of 1 January 2011, which, however, only concern the organisation of the Dutch Competition Authority itself.
Article 1 Definitions
The following definition of terms shall apply for the purposes of this
Act and the decisions based upon it:
a) 'Our Minister': Our Minister of
Economic Affairs;
b) 'Competition Authority': the Netherlands
Competition Authority, as referred to in Article 2(1);
c) 'Board': the Board of the Competition
Authority;
d) 'Treaty': the Treaty
establishing the European Community;
e) 'agreement': an agreement, as referred
to in Article 85(1) of the Treaty;
f) 'undertaking': an undertaking,
as referred to in Article 85(1) of the Treaty;
g) 'association of undertakings':
an association of undertakings, as referred to in Article
85(1) of the Treaty;
h) 'concerted practices': concerted
practices, as referred to in Article 85(1) of the Treaty;
i) 'dominant position': a position
of one or more undertakings which enables them to prevent effective competition
being maintained on the Dutch market or a part thereof, by giving them
the power to behave to an appreciable extent independently of their competitors,
their suppliers, their customers or end-users;
j) 'investigation': actions performed
with a view to determining whether an violation has been committed;
k) 'Regulation 1/2003': Council Regulation
(EC) No. 1/2003 of the Council of the European Union of 16 December 2002
on the implementation of the rules on competition laid down in Articles
81 and 82 of the Treaty (OJEC 2003, L 1);
l) 'Regulation 139/2004': Council
Regulation (EC) No. 139/2004 of the Council of the European Union of 20
January 2004 on the control of concentrations between undertakings (OJEC
L 24);
m) 'Competition Regulation': the Regulation
as specified in paragraphs (k) and (l);
n) 'consumer organizations': foundations
or associations with full legal powers whose objective it is, pursuant
to their articles, to protect the collective interests of consumers.
Chapter 2 The Dutch Competition Authority
Article 2 Formation Dutch Competition Authority and its Board
- 1. A Netherlands
Competition Authority shall exist.
- 2. The Competition
Authority shall be governed by a Board.
- 3. The Framework
Act Independent Public Bodies (‘Kaderwet zelfstandige bestuursorganen’)
is applicable, with the exception of Article 22 of that Act.
Article 3 Composition of the Board
- 1. The Board shall
consist of three members, one of whom shall be the Chairperson.
- 2. Appointments shall be based on expertise
in the field of the responsibilities with which the Board is charged.
- 3. The Chairperson
shall be appointed for a term of no more than six years, while the other
members shall be appointed for terms of no more than four years. The members
may be reappointed once, for a term of no more than four years.
Article 4 No confusion of interests
A member of the Board shall not have any financial or other interests
in undertakings that may give rise to questions concerning his or her
impartiality.
Article 4a [repealed as of 01-01-2011]
Article 4b Management rules
- 1. The Board shall adopt a set of management
rules, which shall at least include rules on methods and procedures. The
management rules shall also include rules for allocating tasks and duties
for when preparing Board decisions.
- 2. Upon having received Our Minister’s
approval, the management rules shall be published in the Netherlands Government
Gazette.
Article 5 Tasks and duties of the Board
The Board shall be charged with duties aimed at implementation of this
Act, and implementation of other laws, insofar as the law in question
so specifies.
Article 5a Staff and organisation of the Board
- 1. Our Minister shall provide the Board with
staff for the purpose of carrying out the duties as meant in Article 5.
- 2. The Board shall draw up mandate regulations
with regard to the powers of the staff.
- 3. The mandate regulations shall set out
rules for granting general mandates concerning the implementation of the
Electricity Act 1998 and the Gas Act, and may set out rules concerning
the implementation of other laws.
- 4. The Board shall
provide for a specific organizational unit that is charged with the enforcement
and oversight of the Dutch Electricity Act 1998 and the Dutch Gas Act.
- 5. The rule, as
referred to in paragraph (2), shall be subject to Our Minister’s
approval. Our Minister shall withhold his approval if, in his opinion,
the mandate regulations may prevent the Board from carrying out its duties
properly. Upon having received Our Minister’s approval, the mandate
regulations shall be published in the Netherlands Government Gazette.
- 6. If Our Minister is of the opinion that
the mandate regulations prevent the duties from being performed properly,
he may ask the Board to amend the mandate regulations.
- 7. If the Board has not followed up on the
request, as meant in paragraph (6), Our Minister may instruct the Board
to amend the mandate regulations in the manner he wishes.
Article 5b Additional instructions of Our Minister to the Board
- 1. Our Minister may instruct the Board to
carry out activities in connection with the implementation of Regulations
concerning competition pursuant to the Treaty,
insofar such has not already been arranged in or pursuant to the law,
and activities concerning competition relating to other conventions or
international agreements.
- 2. Our Minister may issue instructions to
the Board concerning the performance of the activities as meant in paragraph
(1), and concerning the position to be adopted by the Board in advisory
committees, as referred to in Article 14(2) of Regulation 1/2003 and Article
19(4) of Regulation 139/2004, on the understanding that any instruction
concerning a position in an advisory committee shall not affect the competition
aspects of individual cases.
Article 5c Evaluation report
- 1. Whether or not at the request of any of
Our other Ministers, Our Minister may instruct the Board to issue a report
on the effects for competition of intended or current regulations or of
an intended or current decree.
- 2. The Board may also issue a report, as
meant in paragraph (1), on its own initiative.
- 3. Reports to another of Our Ministers shall
be issued through Our Minister.
- 4. At the request
of one or both Houses of the States General, the Board, acting through
Our Minister, shall report to both Houses of the States General. Our Minister
shall submit the report in question to both Houses of the States General
without delay. Our Minister may add his findings to the report.
§ 3. Provision of information, control and supervision
Article 5d Policy rules concerning the implementation of the Competition
Act
Policy rules concerning the implementation of the powers allocated to
the Board in this Act may concern, in whole or in part, the manner in
which the Board is to include other interests besides economic interests
in its considerations for purposes of Article 6(3).
Article 5e Rules for exchange of information with the Board
After the Board has been allowed the opportunity to give its comment,
Our Minister may adopt further rules concerning exchanges of information
between Our and other Ministers and the Board as referred to in Article
20 of the Framework Act Independent Public Bodies (‘Kaderwet
zelfstandige bestuursorganen’).
Article 5f Provisions to be made when the Board neglects its duties
Where the Board in the performance of activities for the implementation
of another Act (law) as meant in Article 5, that falls under the responsibility
of one of Our Ministers, seriously neglects its duties, Our Minister shall,
after consulting other Ministers who it concerns, make provisions as referred
to in Article 23, paragraph 1, of the Framework Act Independent Public
Bodies (‘Kaderwet zelfstandige bestuursorganen’).
Article 5g Annual report
- 1. The annual report meant in Article 18,
paragraph 1 of the Framework Act Independent Public Bodies (‘Kaderwet
zelfstandige bestuursorganen’) shall concern the implementation
of the present Act and the implementation of other Acts (laws), as referred
to in Article 5.
- 2. Where appropriate, the report shall be
sent as well to other Ministers who it concerns.
- 3. When the annual report is submitted to
both Houses of the States General on the basis of Article 18, paragraph
2, of the Framework Act Independent Public Bodies (‘Kaderwet
zelfstandige bestuursorganen’), Our Minister shall add his
findings on it as well as the findings of the other Ministers meant in
paragraph 2.
Article 5h Preparation of report in regard of the implementation of other
Acts
Insofar the report meant in Article 39, paragraph 1, of the Framework
Act Independent Public Bodies (‘Kaderwet zelfstandige bestuursorganen’),
concerns activities performed in the implementation of other Acts (laws)
as referred to in Article 5, Our Minister shall draw up the report after
consultation of other Ministers who it concerns.
Article 5i [repealed as of 01-01-2011]
Article 5j [repealed as of 01-01-2011]
Article 5k [repealed as of 01-01-2011]
Article 5l Adoption of intended implementation regulations
- 1. The Board shall present intended implementation
regulations to Our Minister on a date not later than four weeks before
they will be adopted.
- 2. If the intended implementation regulations,
in the opinion of Our Minister, are in conflict with the interest of a
proper fulfilment of duties by the Board, then this will be notified well-substantiated
by Our Minister to the Board within two weeks after those regulations
were presented to him.
- 3. Where Our Minister has give a notification
as meant in paragraph 2, the Board may not adopt the involved implementation
regulations.
- 4. The Board shall publish the implementation
regulations it has adopted in the Netherlands Government Gazette (‘Staatscourant’).
Chapter 3 Anti-competitive agreements
§ 1. Prohibition of anti-competitive agreements
Article 6 Anti-competitive agreements
- 1. Agreements between undertakings, decisions
by associations of undertakings and concerted practices of undertakings,
which have the intention to or will result in hindrance, impediment or
distortion of competition on the Dutch market or on a part thereof, are
prohibited.
- 2. Agreements and decisions that are prohibited
under paragraph (1) are legally null and void.
- 3. Paragraph (1) shall not apply to agreements,
decisions and concerted practices which contribute to the improvement
of production or distribution, or to the promotion of technical or economic
progress, while allowing consumers a fair share of the resulting benefits,
and which do not:
a. impose any restrictions on the undertakings
concerned, ones that are not indispensable to the attainment of these
objectives, or
b. afford such undertakings the possibility
of eliminating competition in respect of a substantial part of the products
and services in question.
- 4. Any undertaking or association of undertakings
invoking paragraph (3) shall provide proof that the conditions of that
paragraph are met.
Article 7 Excluded anti-competitive agreements
- 1. Article 6(1) shall not apply to agreements,
decisions and concerted practices, as referred to in the said Article,
if:
a. no more than eight undertakings are involved
in the agreement or concerted practice in question, or if no more than
eight undertakings are involved in the respective association of undertakings;
and
b. the combined turnover of the undertakings
party to the respective agreement or the concerted practices in the preceding
calendar year, or the combined turnover of the undertakings which are
members of the respective association of undertakings does not exceed:
i. €5,500,000 if the agreement, concerted practice or association
involves only undertakings whose core activity is the supply of goods
ii. €1,100,000 in all other cases.
- 2. Without prejudice to the provisions set
out in paragraph (1), Article (6)(1) shall furthermore not apply to agreements,
decisions and concerted practices as referred to in the said Article insofar
as they involve undertakings or associations of undertakings that are
actual or potential competitors on one or more of the relevant markets,
if:
a. the combined market share of the undertakings
or associations of undertakings involved in the agreement, decision or
concerted practice is no greater than 5 per cent on any of the relevant
markets affected by the agreement, decision or concerted practice; and
b. the combined turnover of the undertakings
or associations of undertakings involved in the agreement, decision or
concerted practice from the goods or services falling within the scope
of the agreement, decision or concerted practice during the previous calendar
year was no more than €40,000,000.
- 3. If separate agreements with the same purpose
have been concluded between an undertaking or association of undertakings
and two or more other undertakings, such agreements shall be regarded
jointly as a single agreement for the purpose of the application of paragraph
(1).
- 4. By Order in Council, subject to conditions
and restrictions if necessary, Article 6(1) may be declared inoperative
in respect of categories of agreements, decisions or practices, as referred
to in the said Article and described in that order, which are clearly
of minor significance from the point of view of competition.
- 5. The figures stipulated in paragraph (1)(a),
and the amounts stipulated in paragraph (1)(b), may be amended by Order
in Council.
Article 8 Calculation of turnover
- 1. The calculation of the turnover, as referred
to in Articles 7(1)(b) and 7(2)(b) shall be based on the provisions of
Article 377(6) of Book 2 of the Netherlands Civil Code in respect of net
turnover.
- 2. If an undertaking is part of a group,
as referred to in Article 24b of Book 2 of the Netherlands Civil Code,
the turnover of all the undertakings comprising that group shall be added
together for the purpose of calculating the turnover. For the purposes
of this calculation, transactions among the undertakings that make up
that group shall be disregarded.
- 3. For the purpose of calculating the combined
turnover of the undertakings involved, as referred to in Articles 7(1)(b)
and 7(2)(b), transactions between the undertakings shall be disregarded.
Article 9 Decision ruling out an exclusion of certain anti-competitive
agreements
- 1. The Board may issue a decision declaring
that Article 6(1) is nonetheless applicable to an agreement between undertakings,
a decision by an association of undertakings or a concerted practice of
undertakings, which, pursuant to Article 7(1), (2) or (4), are not subject
to Article 6(1), if, in view of market relationships on the relevant market,
such agreements, decisions or practices have a significant detrimental
effect on competition.
- 2. The Board shall notify interested parties
in writing of its intention to issue a decision, as referred to in paragraph
(1), stating the reasons for doing so.
- 3. In derogation from paragraph 4.1.2 of
the General Administrative Law Act ('Algemene wet bestuursrecht'),2 the Board shall afford interested
parties an opportunity to state their views, verbally or in writing, before
applying paragraph (1).
Article 10 Exemption for agreements associated with a concentration
Article 6 shall not apply to agreements, decisions or practices, as referred
to in that Article, which are directly associated with a concentration,
as referred to in Article 27, and are necessary for the implementation
of the respective concentration.
§ 2. Exception in relation to the performance of special tasks
Article 11 Exception in relation to the performance of special tasks
Article 6(1) shall apply to agreements, decisions or practices, as referred
to in that Article, involving at least one undertaking or association
of undertakings entrusted with the provision of services in the public
economic interest, by law or by an administrative body, only insofar as
the application of the said Article does not prevent the performance of
the special task entrusted to the said undertaking or association of undertakings.
Article 12 Agreements to which Article 85(1) of the Treaty is declared
inoperative
Article 6(1) shall not apply to agreements between undertakings, decisions
by associations of undertakings and concerted practices of undertakings
to which Article 85(1) of the Treaty is declared
inoperative, pursuant to a Regulation of the Council of the European Union
or to a Regulation of the Commission of the European Communities.
Article 13 Agreements that cannot have a detrimental effect on trade within
the Community
- 1. Article 6(1) shall not apply to agreements
between undertakings, decisions by associations of undertakings and concerted
practices of undertakings which cannot have a detrimental effect on trade
between the Member States of the European Communities, or which do not
hinder, impede or distort competition within the common market, and which,
if this were the case, would be exempt, pursuant to a Regulation, as referred
to in Article 12.
- 2. The Board may issue a decision declaring
Article 6(1) nonetheless applicable to an agreement between undertakings,
a decision by associations of undertakings or a concerted practice by
undertakings which, pursuant to paragraph (1), are not subject to Article
6(1), if circumstances arise which, pursuant to the respective Regulation,
could result in the said Regulation being declared inoperative.
- 3. Article 3(4) of the General Administrative Law Act ('Algemene wet bestuursrecht') applies to the preparation of the decision.
- 4. The decision shall come into force no
earlier than six weeks after the date on which it is made available for
inspection, pursuant to Article 3:44(1a) of the General Administrative Law Act ('Algemene wet bestuursrecht').
Article 14 Agreements for which dispensation is granted under Article
85(3) of the Treaty
Article 6(1) shall not apply to agreements between undertakings, decisions
by associations of undertakings and concerted practices of undertakings
for which dispensation has been granted, pursuant to Article
85(3) of the Treaty.
Article 15 Agreements contributable to industry, trade or technical and
economic progress
- 1. By Order in Council, subject to conditions
and restrictions if necessary, Article 6(1) may be declared inoperative
in respect of such categories of agreements, decisions or practices, as
referred to in the said Article, as defined in the said order, which contribute
to the improvement of production or distribution of goods or to the promotion
of technical or economic progress, while allowing consumers a fair share
of the resulting benefits, and which do not:
a. impose any restrictions on the undertakings concerned, ones that are
not indispensable to the attainment of these objectives, or
b. afford such undertakings the possibility of eliminating competition
in respect of a substantial part of the products and services in question.
- 2. An Order in Council, as referred to in
paragraph (1), may stipulate that the Board may issue a decision declaring
Article 6(1) nonetheless applicable to an agreement, a decision or a concerted
practice which, pursuant to that Order, is not subject to Article 6(1),
if the conditions set out in that Order in Council are satisfied.
- 3. Article 3(4) of the General Administrative Law Act ('Algemene wet bestuursrecht') applies to the preparation of the decision.
- 4. The decision shall come into force no
earlier than six weeks after the date on which it is made available for
inspection, pursuant to Article 3:44(1a) of the General Administrative Law Act ('Algemene wet bestuursrecht').
Article 16 Collective Labour Agreements; agreements on pensions
Article 6(1) shall not apply to the following:
a. collective labour agreements as defined
in Article 1(1) of the Dutch Collective Labour Agreement Act;
b. agreements within an industry or sector
between one or more employers’ organizations and one or more unions
that pertain exclusively to pensions as meant in Article 1(1)(a) of the
Pension and Savings Funds Act;
c. agreements or decisions by organizations
of professionals that pertain exclusively to participation in an occupational
pension scheme as defined in Article 1(1)(d) of the Occupational Pension
Scheme (Obligatory Participation) Act, if a request for obligation by
Our Minister of Social Affairs and Employment has been lodged in accordance
with Article 2 of that Act, pertaining to such a scheme, and the request
has not been rejected.
§ 4. [repealed as of August 1, 2004]
Article 17 [repealed as of August 1, 2004]
Article 18 [repealed as of August 1, 2004]
Article 19 [repealed as of August 1, 2004]
Article 20 [repealed as of August 1, 2004]
Article 21 [repealed as of August 1, 2004]
Article 22 [repealed as of August 1, 2004]
Article 23 [repealed as of August 1, 2004]
§ 1. Prohibition of the abuse of dominant positions
Article 24 Prohibition to abuse a dominant position; implementation of
a concentration
- 1. Undertakings are prohibited from abusing
a dominant position.
- 2. The implementation of a concentration,
as described in Article 27, shall not be deemed to be an abuse of a dominant
position.
§ 2. Exception in relation to the performance of special tasks
Article 25 Exceptions related to the performance of special tasks
- 1. The Board may, on request, declare Article
24(1) inoperative in respect of a designated practice, insofar as the
application of Article 24(1) prevents the provision of a service in the
public economic interest, entrusted to an undertaking by law or by an
administrative body.
- 2. A declaration, as referred to paragraph
(1), may be issued subject to restrictions; a declaration may be issued
subject to conditions.
Chapter 4A Financial transparency within certain undertakings
Article 25a Definitions
The following definitions shall apply to this Chapter:
(1) 'Directive': Directive No. 2000/53/EC
of the Commission of the European Communities of 26 July 2000 (OJEC L
193) amending Directive No. 80/723/EEC in relation to the transparency
of financial relations between Member States and public undertakings;
(2) 'exclusive right': a right granted
by law or by a decision of an administrative body to an undertaking, whereby
the right to provide a service or to carry out an activity is reserved
for the said undertaking;
(3) 'special right': a right, granted
by law or by a decision of an administrative body, to a limited number
of undertakings, whereby within a certain geographical area:
(a) the number of such undertakings, which may provide a service
or carry out an activity, is restricted to two or more in accordance with
criteria other than the criteria of objectivity, fairness and non-discrimination;
(b) various competing undertakings, which may provide a service
or may carry out an activity, are designated in accordance with criteria
other than the aforementioned criteria; or
(c) benefits are granted to one or more undertakings in accordance
with criteria other than the aforementioned criteria, as a result of which
the opportunity for any other undertaking to carry out the same activities
within the same geographical area subject to materially equivalent conditions
shall be appreciably obstructed;
(4) 'various activities': those include,
on the one hand, products or services, in relation to which an undertaking
has been granted a special or exclusive right, or all the services in
the public economic interest with which an undertaking is entrusted and,
on the other hand, each other individual product or each other individual
service in respect of which the undertaking is active.
Article 25b Duty to keep administrative records for undertakings with
exclusive rights
- 1. Undertakings, to which a special or exclusive
right has been granted, in accordance with Article
86 (1) of the Treaty, or which, in accordance with Article
86 (2) of the Treaty, are entrusted with providing a service in the
public economic interest, which, in respect of this service, receive compensation
in any form, and which carry out various activities, shall keep administrative
records such that:
a. the registration of the income and expenditure
of the various activities is separated;
b. all income and expenditure is properly allocated
in accordance with objectively justifiable principles of cost accounting;
c. the principles of cost accounting, on which
the administration is based, are clearly recorded.
- 2. The undertaking shall keep the data, referred
to in paragraph (1)(a), (b) and (c), for five years, calculated from the
end of the financial year to which the data relate.
Article 25c Exemption from the duty to keep administrative records
Article 25b(1) shall not apply to activities which are subject to specific
provisions adopted by the European Community in relation to the separation
of administrative records other than those contained in the Directive.
Article 25d Exemption for certain undertakings from the duty to keep administrative
records
- 1. Article 25b(1) shall also not apply to:
a. undertakings that provide services which
do not have appreciably detrimental effects on trade between Member States;
b. undertakings, whose total net annual turnover
has amounted to less than €40 million for the two financial years
prior to the financial year in which the undertaking has enjoyed a special
or exclusive right, granted in accordance with Article
86(1) of the Treaty, or in which it was entrusted with providing a
service in the public economic interest, in accordance with Article
86(2) of the Treaty;
c. undertakings that have been entrusted with
the provision of a service in the public economic interest for a reasonable
period, in accordance with Article 86(2) of the Treaty,
if the government assistance it receives, in whatever form, including
a subsidy, support or compensation, was determined in accordance with
an open, transparent and non-discriminatory procedure.
- 2. For the application of paragraph (1)(b),
in the case of public credit institutions, the net annual turnover shall
be substituted by a balance-sheet total of less than €800 million.
- 3. The amount, referred to in paragraph (1)(b)
and the amount, referred to in paragraph (2), may be amended by a decision
of Our Minister, if the amendment is pursuant to a binding decision of
a body of the European Communities.
Article 25e Duty of undertakings to provide information to the European
Commission
If the Commission of the European Communities requests that it wishes
to be provided with information, as referred to in Article 25b(1), the
undertaking in question shall provide the Board, at its request, with
the respective information within a term to be set by the Board. The Board
shall forward the information to the Commission of the European Communities.
Article 25f Delegation of legislative power
If the proper implementation of the Directive so requires, Our Minister
may introduce regulations containing further rules in respect of the application
of this Chapter.
Article 26 Definition of ‘control’
For the purposes of this Chapter, the term ‘control’
refers to the ability of exercising decisive influence on the activities
of an undertaking on the basis of actual or legal circumstances.
Article 27 Definition of ‘concentration’
- 1. The term ‘concentration’
shall be understood to mean:
a. the merger of two or more previously mutually
independent undertakings;
b. the acquisition of direct or indirect control
by:
i. one or more natural persons who or legal entities which already
control at least one undertaking,
ii. one or more undertakings of the whole or parts of one or
more other undertakings, through the acquisition of a participating interest
in the capital or assets, pursuant to an agreement, or by any other means;
- 2. The creation of a joint undertaking, which
performs all the functions of an autonomous economic entity on a lasting
basis shall qualify as a concentration as meant in paragraph (1)(b).
Article 28 Exemption on the definition of ‘concentration’
- 1. In derogation from Article 27, a concentration
shall not be deemed to arise where:
a. credit institutions, other financial institutions,
and insurance companies as referred to in Article 1(1)(a) and (1)(c) of
the Dutch Financial Supervision Act ['Wet op het financieel toezicht'],
of which the normal activities include transactions and dealings in securities
for their own account or for the account of others, hold on a temporary
basis securities which they have acquired in an undertaking with a view
to reselling these, provided that they do not exercise the voting rights
in respect of those securities with a view to determining the competitive
behavior of the said undertaking, or provided they exercise such voting
rights only with a view to preparing for the sale of those securities
and that any such sale takes place within one year of the date of acquisition.
b. control is acquired by:
i. receivers, as referred to in Article 68(1) of the Dutch Bankruptcy
Act ['Faillissementswet'];
ii. managers (administrators) appointed by the courts, as referred
to in Article 215(2) of the Dutch Bankruptcy Act ['Faillissementswet'];
iii. persons, as referred to in Article 1:76(1) of the Dutch
Financial Supervision Act ['Wet op het financieel toezicht'];
iv. managers, as referred to in Article 3:162(4) of the Dutch
Financial Supervision Act ['Wet op het financieel toezicht'];
v persons, as referred to in Article 3:175(9) of the Dutch Financial
Supervision Act ['Wet op het financieel toezicht'];
c. participating interests in the capital,
as referred to in Article 27(1)(b), including participating interests
in joint undertakings as referred to in Article 27(2), acquired by venture
capital undertakings, provided the voting rights pertaining to the participating
interest are exercised only to maintain the full value of these investments.
- 2. If requested, the Board may extend the
term, referred to in paragraph (1)(a), if the respective institutions
or insurance companies show that, within reason, the sale was not feasible
within the stipulated term.
§ 2. Scope of application of concentration oversight
Article 29 Concentrations subject to the provisions of the present Chapter
- 1. The provisions of this Chapter shall apply
to concentrations, of which the combined turnover of the participating
undertakings exceeded €113,450,000 in the preceding calendar year,
at least €30,000,000 of which was realized in the Netherlands by
at least two of the undertakings involved.
- 2. The thresholds, referred to in paragraph
(1), may be increased by Order in Council.
- 3. By Order in Council, the threshold, referred
to in paragraph (1), may be lowered for specific categories of undertakings
as determined by that Order in Council for periods of up to five years.
Any such periods may be renewed by Order in Council.
Article 30 Calculation of turnover
- 1. The turnover, as referred to in Article
29(1), shall be calculated in accordance with the provisions of Article
377(6) of Book 2 of the Netherlands Civil Code in respect of net turnover.
- 2. Where the concentration is implemented
through the acquisition of control over parts, whether or not constituted
as legal entities, of one or more undertakings, in respect of the seller
or sellers, only the turnover relating to the parts which are the subject
of the transaction shall be taken into account in calculating the turnover,
as referred to in Article 29(1).Two or more acquisitions, as referred
to in the first sentence, that are effected within a time span determined
by the Board and that are interdependent, or for economic purposes are
linked together in such a manner that those acquisitions should be considered
as one, shall be deemed to constitute a single concentration effected
on the day of the final transaction.
- 3. Without prejudice to the provisions of
paragraph (2), the aggregate turnover of the undertaking involved, as
referred to in Article 29(1), shall be determined by the sum of the respective
turnovers of the following undertakings:
a. the undertaking involved;
b. those undertakings in which the undertaking
concerned, directly or indirectly:
i. owns more than half of the capital or business assets, or
ii. has the power to exercise more than half the voting rights,
or
iii. has the power to appoint more than half the members of the
supervisory board, the management, or bodies legally representing the
undertaking, or
iv. has the right to manage the undertaking;
c. those undertakings which, as part of the
undertaking involved, hold the rights or powers listed in (b);
d. those undertakings, in which an undertaking,
as referred to in (c), holds the rights or powers referred to in (b);
e. those undertakings, in which two or more
undertakings, as referred to (a) to (d), hold the rights or powers, as
referred to in (b).
- 4. Where undertakings involved in the concentration
jointly hold the rights or powers, as referred to in paragraph (3)(b),
in calculating the aggregate turnover of the undertakings concerned, for
the purposes of Article 29(1):
a. no account shall be taken of the turnover
resulting from the sale of products or the provision of services between
the joint undertaking and each of the undertakings involved, or any other
undertaking connected with the undertaking involved, as referred to in
paragraph (3)(b) to (3)(e);
b. the turnover resulting from the sale of
products and the provision of services between the joint undertaking and
any third-party undertakings shall be taken into account. This turnover
shall be apportioned to the undertakings in proportion to their participating
interests in the joint undertaking.
- 5. Transactions between the undertakings,
as referred to in paragraph (3), shall not be taken into account in calculating
the combined turnover of the undertakings involved, as referred to in
Article 29(1).
Article 31 Calculation of turnover of credit and financial institutions
- 1. For the application of Article 29(1),
the turnover of credit institutions and financial institutions, as referred
to in the Dutch Financial Supervision Act ['Wet op het financieel
toezicht'], shall be replaced by the sum of the following income
components included in the profit and loss account for the previous financial
year, in accordance with the rules laid down in Article 417 of Book 2
of the Dutch Civil Code ['Burgerlijk Wetboek']:
a. interest and similar income;
b. revenue from securities;
c. commissions received;
d. income from financial transactions;
e. other operating income;
f. net of value added tax and other taxes relating
directly to the income components in question.
- 2. For the application of Article 29(1),
in respect of insurance companies, as referred to in the Financial Supervision
Act, the turnover shall be substituted by the value of the gross contributions
written in the preceding financial year, of which at least €4,540,000
are received from Dutch residents.
Article 32 [repealed as of January 1, 2000]
Article 33 [repealed as of August 1, 2004]
Article 34 Duty to notify the Board of an intention to form a concentration
It is prohibited to implement a concentration before the Board has been
notified of the intention to do so and before a subsequent period of four
weeks has passed.
Article 35 Content of a notification to the Board
- 1. Notifications shall include such information
as is required by Order in Council. Article 4:4 of the General Administrative Law Act ('Algemene wet bestuursrecht') shall apply mutatis mutandis.
- 2. The Board may require the parties involved
in the concentration to provide further information in the event of non-compliance
with the provisions of Article 1, or if the information provided is insufficient
for the purpose of the assessment of a notification.
- 3. Information, which the undertaking deems
to be confidential, provided by an undertaking with the notification shall
not be made public until one week has passed after the announcement of
a decision of the Board to this effect.
- 4. If an application is made for a provisional
injunction, as referred to in Article 8:81 of the General Administrative
Law Act ['Algemene wet bestuursrecht'], in relation to the decision
of the Board, as referred to in paragraph (3), the term stipulated in
Articles 34 and 37(1) and (3) shall be suspended until the day on which
the written ruling of the district court in interlocutory proceedings,
as referred to in Article 93(1), is handed down.
Article 36 Publication of notifications received by the Board
Notifications which the Board receives shall be announced in the Netherlands
Government Gazette ['Staatscourant'] at the earliest opportunity.
Article 37 Response of the Board to a notification
- 1. Within four weeks of the receipt of a
notification, the Board shall give notice as to whether a license is required
for the concentration to which the notification relates.
- 2. The Board may determine that a license
is required for a concentration if it has reason to assume that the said
concentration could appreciably impede effective competition on the Dutch
market or on a part thereof, particularly as a result of the creation
or strengthening of a dominant economic position.
- 3. If the notification concerns a concentration,
as referred to in Article 27(2), that is aimed at or results in coordination
of the competitive behavior of the effecting undertakings, the Board’s
decision as to whether a license is required shall also take into account
the criteria set out in Article 6(1) and (3).
- 4. Conditions may be attached to the notice
that no license is required for effecting the concentration if it is indisputably
evident from the data and proposals submitted in connection with the notification
that the consequences as described in paragraphs (2) and (3) may be avoided
if the conditions specified are met.
- 5. If paragraph (1) is not applied within
four weeks, no license shall be required for the concentration. The term,
referred to in the previous sentence, shall commence on the first day
following receipt of the notification, provided this is not a Saturday,
Sunday or a public holiday, in accordance with the Dutch General Extension
of Time Limits Act ['Algemene termijnenwet'].
- 6. Pursuant to the Board's unconditional
notice, as described in paragraph (1), that a license is not required
for the concentration, the prohibition in Article 34 shall cease to apply
in respect of the said concentration. In the event of a notice as described
in paragraph (4), the prohibition in Article 34 shall remain applicable
until the conditions specified have been met. If the parties fail to meet
those conditions, or fail to meet them within the time permitted, a license
shall then be required. 7 . The notice of the Board, as referred to in
paragraph (1), shall be published in the Netherlands Government Gazette.
Article 38 Periods to provide additional information to the Board
- 1. If the provisions of Article 35(1) have
not been met and the Board has, within five working days after the day
of receipt of the notification, requested the notifying party to submit
the missing information or documents, the said term of four weeks, as
referred to in Article 34 and Article 37(1) and (5), shall commence on
the day on which that information or those documents are provided.
- 2. Without prejudice to the matters set out
in paragraph (1), the said term of four weeks, as referred to in Article
34 and Article 37(1) and (5), shall be suspended from the day on which
the Board requests further information, pursuant to Article 35(2), until
the day on which such information is provided by each of the parties from
which further information is requested.
- 3. The Board may also suspend the term once,
based on a substantiated request from each of the notifying parties, if
the Board is of the opinion that such serves to further the handling of
the notification.
- 4. Notifications are deemed not to have been
made if further information, as referred to in paragraph (2), has not
been provided within six months following the date on which the last request
for further information was made and the term has not been suspended pursuant
to paragraph (3).
Article 39 Exemption from notification duty in case of a public acquisition
or exchange bid
- 1. Article 34 shall not apply in the case
of a public acquisition or exchange bid aimed at the acquisition of a
share in the capital of an undertaking, provided that the Board is notified
of this immediately and the acquiring party does not exercise the voting
rights attached to the said share in the capital.
- 2. If the Board gives notice that a license
is required, pursuant to Article 37(1), in respect of a notification,
as referred to in paragraph (1), the concentration:
a. shall be reversed within thirteen weeks,
if an application for a license is not submitted within four weeks after
the aforementioned notice is given, or if a license is refused;
b. shall be brought into compliance with any
such restrictions or conditions, if a license is issued subject to restrictions
or conditions, within thirteen weeks after the said license is granted.
- 3. At the request of the notifying party,
as referred to in paragraph (1), in derogation from paragraph (1), the
Board may decide that the voting rights, as referred to in paragraph (1),
may be exercised in order to maintain the full value of the said party's
investment.
Article 40 Exemption from notification duty granted by the Board
- 1. At the request of the notifying party,
the Board may, on important grounds, grant an exemption from the prohibition
of Article 34.
- 2. Exemption may be granted subject to restrictions;
conditions may be attached to an exemption.
- 3. If, after granting an exemption, as referred
to in paragraph (1), in respect of the aforesaid notification, the Board
gives notice that a license is required, pursuant to Article 37(1), and
the concentration has been implemented before such notice has been given,
the concentration:
a. shall be reversed within thirteen weeks, if an application for a license
is not submitted within four weeks after such notice is given, or the
application for a license is withdrawn, or if a license is refused;
b. shall be brought into compliance with any such restrictions or conditions,
if a license is issued subject to restrictions or conditions, within thirteen
weeks after the said license is granted.
Article 41 License to effectuate a concentration
- 1. The effecting of a concentration, in respect
of which a license is required pursuant to Article 37, is prohibited without
a license.
- 2. A license shall be refused if, as a result
of the proposed concentration, effective competition on the Dutch market
or a part thereof would be appreciably impeded, specifically as a result
of the creation or strengthening of a dominant economic position. Article
37(3) shall apply mutatis mutandis if the application for a license concerns
a concentration, as referred to in Article 27(2), aimed at or resulting
in coordination of the competitive behaviour of the effecting undertakings.
- 3. If at least one of the undertakings involved
in the concentration is entrusted with the provision of services in the
public economic interest, by law or by an administrative body, a license
may be refused only if such refusal does not obstruct the performance
of the duties entrusted to the undertaking or undertakings in question.
- 4. A license may be issued subject to restrictions;
conditions may be attached to a license.
Article 42 Application for a license
- 1. An application for a license shall be
submitted to the Board.
- 2. The information to be provided with an
application may be stipulated in an Order in Council.
- 3. Information, which the undertaking deems
to be confidential, provided by an undertaking with the notification,
shall not be made public until one week has passed after the announcement
of a decision of the Board to this effect.
- 4. If an application is made for a provisional
injunction, as referred to in Article 8:81 of the General Administrative Law Act ('Algemene wet bestuursrecht'), in relation to the decision of the Board, as referred to in paragraph
(3), the term, as referred to in Article 44(1), shall be suspended until
the day on which the written ruling of the court of interlocutory proceedings,
as referred to in Article 93(1), is handed down.
- 5. The Board shall announce applications
received in the Netherlands Government Gazette at the earliest opportunity.
Article 43 Duty to explain earlier provided information to the Board
An undertaking shall provide the Board, on request, with such explanations
of the information regarding its business as are deemed necessary, within
reason, for the assessment of a license application.
Article 44 Decision of the Board on the application for a license
- 1. The Board shall issue its decision on
the application within thirteen weeks of receipt of the said application.
Failure to issue a decision within thirteen weeks shall be equated with
the granting of a license.
- 2. If an application is submitted before
the Board gives notice that a license is required for the said concentration,
the application shall not be processed until such notice has been given.
The term, as referred to in paragraph (1), shall commence on the date
that such notice is given.
- 3. The decision shall be available for inspection
at the offices of the Competition Authority following its announcement.
Information which does not qualify for publication, pursuant to Article
10 of the Dutch Act on Public Access to Government Information ['Wet
openbaarheid van bestuur'], shall not be made available for inspection.
- 4. The decision shall be published in the
Netherlands Government Gazette.
Article 45 Revocation of a license that was granted
The Board may revoke a license if the information provided is inaccurate
to the extent that a different decision would have been made in respect
of the license if the correct information had been known.
Article 46 Exemption granted by the Board from the requirement to have
a licence
- 1. For important reasons, at the request
of an applicant for a license, the Board may grant an exemption from the
prohibition of Article 41(1) until an irrevocable decision is issued on
the license application.
- 2. An exemption may be granted subject to
restrictions; conditions may be attached to an exemption.
- 3. If the license application is withdrawn
or a license is refused after the exemption, referred to in paragraph
(1), has been granted, the concentration, insofar as it has been implemented,
shall be reversed within thirteen weeks.
- 4. If the license is granted subject to restrictions
or conditions, the concentration, insofar as it has been implemented,
shall be brought into compliance with such restrictions or conditions
within thirteen weeks.
Article 47 Request to the Minister if a license is denied by the Board
- 1. After the Board has refused a license
for the implementation of a concentration and following an application
requesting such, Our Minister may decide that the license shall be granted
if, in the Minister's opinion, this is necessary for important reasons
in the public interest, which outweigh the expected impediment to competition.
- 2. An application, as referred to in paragraph
(1), may be submitted up to four weeks after the Board's decision to refuse
a license has become irrevocable.
- 3. If an application, as referred to in paragraph
(1), is made, the consideration of administrative and judicial appeals
against the Board's decision shall be suspended until an irrevocable decision
is issued on the said application.
Article 48 Delegation of legislative power
The information that must be provided with an application for a license
submitted to Our Minister may be specified in an Order in Council.
Article 49 Decision of the Minister on a request
- 1. Our Minister shall take his decision on
an application, in accordance with the views of the Cabinet, within twelve
weeks of receipt of the application.
- 2. Article 44(3) and (4) shall apply mutatis
mutandis.
Chapter 5A Commitment decision
Article 49a Application for a binding commitment
- 1. For the purposes of preparing a report,
as referred to in Article 59, or if a report has been adopted, an undertaking
or association of undertakings may, until the moment that a decision,
as referred to in Article 62, has been made, apply to the Board for a
decree in which the Board declares a commitment set out in that application
to be binding for the undertaking or association of undertakings, in order:
a. to prevent any violation of Article 6(1)
or Article 24(1); or
b. to ensure the discontinuation of a violation
of Article 6(1) or Article 24(1).
- 2. The Board may issue a decision, as meant
in paragraph (1), if it is of the opinion that:
a. it is ensured that the undertaking or association
of undertakings will act in accordance with Article 6(1) or Article 24(1)
as a result of that decision;
b. the undertaking or association of undertakings
shows, within reason, that it will comply with the decision in such a
manner that that compliance can be verified; and
c. it is more effective in a specific case,
for the purposes of enforcing the law, to issue such a decision than to
impose an administrative fine or an order subject to a penalty.
- 3. In a decree, as referred to in paragraph
(1), the Board shall also decision that it will not launch an investigation,
will discontinue a previously initiated investigation, will refrain from
drawing up a report or will refrain from imposing an administrative fine
or an order subject to periodic penalty payments. The decision shall not
set out any opinion as to whether the behavior of the undertaking or association
of undertakings can be reconciled with the provisions set out in or pursuant
to this Act.
- 4. Once the Board has issued a decision,
as referred to in paragraph (1), the undertaking or association of undertakings
shall behave in accordance with that decision.
- 5. A decree, as referred to in paragraph
(1), shall be issued for a specific term. The Board may decide to renew
any such decision for a specific term.
Article 49b Application of the General Administrative Law Act
Part 3.4 of the General Administrative Law Act ('Algemene wet bestuursrecht') shall apply to the preparation
of a decision, as referred to in Article 49a(1), or a ruling to renew
such a decision, as referred to in the second sentence of Article 49a(5).
Article 49c Investigations conducted by the Board
- 1. After having issued a decision, as referred
to in Article 49a(1), or a ruling renewing such a decision, as referred
to in the second sentence of Article 49a(5), the Board may still initiate
an investigation if:
a. the facts on which the decision was based
have undergone a material change;
b. the decision was based on incomplete, incorrect
or misleading information provided by the undertaking or association of
undertakings; or
c. the undertaking or association of undertakings
acts in breach of Article 49a(4).
- 2. During the course of the investigation,
as referred to in paragraph (1), the Board may revoke or amend a decision,
as referred to in Article 49a(1), or a ruling renewing such a decision,
as referred to in the second sentence of Article 49a(5).
- 3. Part 3.4 of the General Administrative Law Act ('Algemene wet bestuursrecht') shall apply to the preparation of a ruling to amend a decision,
as referred to in paragraph (2).
Article 49d Decision deposited at the office of the Competition Authority
- 1. After having been announced, a decision,
as referred to in Article 49a(1), or a decision renewing such a decision,
as referred to in the second sentence of Article 49a(5), shall be made
available for inspection at the offices of the Competition Authority.
Information that does not qualify for provision, pursuant to Article 10
of the Dutch Act on Public Access to Government Information ['Wet
openbaarheid van bestuur'], shall not be made available for inspection.
- 2. The decision shall be published in the
Netherlands Government Gazette.
Chapter 6 Enforcement and investigations
Article 50 Enforcement of compliance with the provisions of the Competition
Act
- 1. The officials of the Competition Authority,
as appointed in accordance with a decision of the Board, shall be responsible
for enforcing compliance with the provisions of or pursuant to this Act.
- 2. With a view to the exercising of the Board's
powers, as referred to in Article 9(1), Article 13(2), Article 15(2) and
Article 89a(1), the officials, appointed pursuant to paragraph (1), shall
hold the powers assigned to them for the performance of their enforcement
duties.
- 3. Notice of a decision, as referred to in
paragraph (1), shall be given by the publication thereof in the Netherlands
Government Gazette.
Article 51 Inapplicability of certain provisions of the General Administrative
Law Act
- 1. Article 5:17 of the General Administrative Law Act ('Algemene wet bestuursrecht') shall not apply to documents relating to the application of competition
rules, exchanged between an undertaking and a lawyer admitted to the Bar,
which are in the possession of the undertaking, but which, had they been
in the possession of the lawyer, would have been subject to Article 5:20(2)
of the General Administrative Law Act ('Algemene wet bestuursrecht').
- 2. Article 1 shall apply mutatis mutandis
to those meant in Article 51(2)(2) of the Netherlands Criminal Code.
Article 52 Officials charged with conducting investigations
- 1. The officials appointed, pursuant to Article
50(1), shall be responsible for investigations.
- 2. For the purpose of investigations, they
shall have the powers assigned to them in this paragraph, as well as the
powers assigned to them for the performance of their enforcement duties,
as referred to in Article 50(1), taking account of the restrictions in
this respect imposed in this paragraph.
Article 53 Request for information in case of the presumption of a violation
- 1. If the officials, referred to in Article
52(1), have reason to suspect that a certain undertaking or association
of undertakings has committed a violation, the undertaking or association
of undertakings shall not be obliged to make a statement. The parties
concerned shall be notified of this prior to an oral request for information
on the matter in question.
- 2. Article 1 shall apply mutatis mutandis
to those meant in Article 51(2)(2) of the Netherlands Criminal Code.
Article 54 Right to seal of business premises and objects
The officials, referred to in Article 52(1), are authorized to seal off
business premises and objects, insofar as this may be deemed necessary,
within reason, for exercising the powers referred to in Article 5:17 of
the General Administrative Law Act ('Algemene wet bestuursrecht').
Article 54a Administrative fine or order under s periodic penalty payment
The activities relating to imposing an administrative fine or an order
subject to periodic penalty payments shall be carried out by persons who
were not involved in the preparation of the report, as referred to in
Article 59(1) or Article 77(1), as applicable, and the investigation that
preceded that report.
Article 55 Right to enter and search houses
- 1. The officials, referred to in Article
52(1), shall be authorized to enter and search a home without the resident’s
permission, insofar as such is, within reason, necessary for the purpose
of exercising the powers assigned to them under Article 5:17 of the General Administrative Law Act ('Algemene wet bestuursrecht').
- 2. The officials, referred to in Article
52(1), shall, if necessary, exercise the powers assigned to them under
Article 5:17 of the General Administrative Law Act ('Algemene wet bestuursrecht'), as well as the power
to enter and search a home as referred to in paragraph (1), with the assistance
of the police.
Article 55a Required warrant for entering or searching a house
- 1. Entering or searching a home, as referred
to in Article 55(1), shall require a prior warrant from the examining
magistrate entrusted with handling criminal proceedings before the District
Court of Rotterdam. Such a warrant may be requested as a precautionary
measure. If possible, the warrant shall be presented.
- 2. Article 171 of the Netherlands Code of
Criminal Procedure shall apply mutatis mutandis. The examining magistrate
may request the Dutch Public Prosecution Service’s opinion before
making any decision.
- 3. Insofar as the request for a warrant was
rejected, the Board may appeal the examining magistrate’s decision
before the District Court of Rotterdam within two weeks.
- 4. Any entry into or searching of a home
shall be supervised by the examining magistrate.
- 5. Articles 2 and 3 of the General Act on
Entry of Dwellings ['Algemene wet op het binnentreden'] shall not
apply.
Article 55b Content of a warrant
- 1. A warrant, as referred to in Article 55a,
shall be substantiated and signed, and shall state the following:
a. the name of the examining magistrate who
issued the warrant;
b. the name or id-number and capacity of the
person to whom the warrant was issued;
c. the statutory provisions on which the search
and entry are based;
d. the purpose and subject of the investigation;
e. the date.
- 2. If the entry or search is of such an urgent
nature that the warrant cannot be issued in writing in advance, the examining
magistrate shall ensure that it is set out in writing as soon as possible.
- 3. The warrant shall remain valid no longer
than up to and including the third day after the day on which it was issued.
- 4. Article 6 of the General Act on Entry
of Dwellings ['Algemene wet op het binnentreden'] shall not apply.
Article 55c Written report after a house has been entered and searched
- 1. The official who has entered a home or
conducted a search, as referred to in Article 55, shall draw up a written
report on the entry or the search, under oath of office or solemn affirmation.
- 2. In that report, he shall state the following:
a. his name or id-number and his capacity;
b. the date of the warrant and the name of
the examining magistrate who issued the warrant;
c. the statutory provisions on which the search
and entry were based;
d. the place entered or searched and the name
of the person whose home was entered or in whose home the search was conducted;
e. the manner of entry and the times at which
the search started and was completed;
f. all acts performed during the search and
any other incidents during the search;
g. the names or numbers and the capacities
of the other persons who entered the home or who participated in the search.
- 3. The report shall be sent to the examining
magistrate who issued the warrant no later than on the fourth day following
the day on which the home was entered or the search was completed.
- 4. A copy of the report shall be issued or
sent to the person whose home was entered or in whose home the search
was conducted, no later than on the fourth day following the day on which
the home was entered or the search was completed. If the purpose of the
investigation so necessitates, this issuing or sending may be deferred.
In that case, the report shall be issued or sent as soon as the interests
of that purpose so permit. If it is impossible to issue or send the report,
the examining magistrate or the official who entered the home or conducted
the search shall ensure that the copy is available for the person whose
home was entered or in whose home the search was conducted for a period
of six months.
- 5. Articles 10 and 11 of the General Act
on Entry of Dwellings ['Algemene wet op het binnentreden'] shall
not apply.
Chapter 7 Violation of the prohibition on competition agreements and on
the abuse of dominant positions
§ 1. Administrative fines, orders subject to periodic penalty payments,
and binding instructions
Article 56 Penalties which may be imposed by the Board
- 1. In the event of a violation of Article
6(1) or Article 24(1), the Board may:
a. impose an administrative fine;
b. impose an order subject to periodic penalty
payments;
c. impose a binding instruction to comply with
this Act
- 2. In the event of a violation of a binding
instruction, as referred to in paragraph (1)(c), the Board may impose
an administrative fine or an order subject to periodic penalty payments
on the violator.
Article 57 Administrative fine
- 1. The administrative fine shall amount to
a maximum of €450,000 or, to a maximum of 10 per cent of the turnover
of the undertaking, or, if the violation is committed by an association
of undertakings, the said fine shall amount to a maximum of 10 per cent
of the combined turnover of the undertakings that are members of the association,
in the financial year preceding the decision. If Article 51(2)(2) of the
Netherlands Criminal Code applies pursuant to Article 5:1, paragraph 3,
General Administrative Law Act ('Algemene wet bestuursrecht'), the fine shall amount to a maximum of
€450,000.
- 2. The turnover, as referred to in paragraph
(1), shall be calculated in accordance with the provisions of Article
377(6) of Book 2 of the Netherlands Civil Code in respect of net turnover.
Article 58 Additional order to provide information
- 1. Conditions relating to the provision of
information to the Board may be attached to an order subject to periodic
penalty payments.
- 2. An order shall apply for a period, not
exceeding two years, to be determined by the Board.
Article 58a Imposed order strengthen addeded with a periodic penalty payment
- 1. The order subject to periodic penalty
payments may be imposed in the form of a structural measure, as referred
to in Article 7 of Regulation 1/2003, if that measure is proportionate
to the violation committed and is necessary in order to actually end the
violation. A structural measure may only be imposed if no corrective measure
is available that would be as effective or if such a measure would impose
a greater burden on the undertaking or association of undertakings in
question than the structural measure.
- 2. Article 58(2) shall not apply.
Article 59 Report of the Board in case of the presumption of a violation
- 1. If the Board has a reasonable suspicion,
after the conclusion of an investigation, that a violation, as referred
to in Article 56, has been committed and that an administrative fine or
an order subject to periodic penalty payments should be imposed in this
regard, it shall draw up a report as referred to in Article 5:48, paragraph
1, General Administrative Law Act ('Algemene wet bestuursrecht').
- 2. Insofar the report shall be used in the
preparation of imposing an administrative fine or an order subject to
periodic penalty payments, Article 5.4.2. of the General Administrative Law Act ('Algemene wet bestuursrecht') shall also apply.
- 3. Any oral comments made in connection with
giving an opinion on the report will be recorded in writing.
Article 59a Prior investigations before imposing an administrative fine
- 1. Before an administrative fine is imposed,
the accounts and records of the undertaking or association of undertakings
may be investigated by officials of the Competition Authority appointed
by a decision of the Board in order to determine the financial data to
be taken into account for the purposes of imposing the administrative
fine.
- 2. For the purposes of the investigation,
as referred to in paragraph (1), the officials, as referred to in paragraph
(1), may engage the assistance of an auditor, as referred to in Article
393(1) of Book 2 of the Netherlands Civil Code.
- 3. The undertaking or association of undertakings
shall cooperate in an investigation, as referred to in paragraph (1).
Article 60 [repealed as of July 1, 2009]
Article 61 [repealed as of July 1, 2009]
Article 62 Decision of the Board within eight months after the report
meant in Article 59
In derogation from Article 5:51, paragraph 1, General Administrative Law Act ('Algemene wet bestuursrecht'), the Board shall issue a decision on whether to impose a fine or an
order subject to periodic penalty payments within eight months after the
report’s date.
Article 63 Suspension of the execution of an administrative fine
The operation of a decision, as referred to in Article 56, insofar as
the said decision imposed an administrative fine, shall be suspended until
the term for judicial appeals has expired or, if a judicial appeal has
been lodged, until a ruling on the judicial appeal has been handed down.
Article 64 Interruption of a time limitation
- 1. The time limitation, as referred to in
Article 5:45, General Administrative Law Act ('Algemene wet bestuursrecht'),
shall be interrupted by any act on the part of the Competition Authority
aimed at conducting an investigation or initiating proceedings concerning
the violation, and by any such act on the part of the Commission of the
European Communities or of the Competition Authority of another Member
State of the European Union concerning an violation of Articles
81 and 82 of the Treaty.
- 2. The interruption of the time limitation
shall commence on the first day on which at least one undertaking or association
of undertakings that was party to the violation, or one of the persons,
as referred to in Article 51(2)(2°) of the Netherlands Criminal Code,
is notified in writing of the act.
- 3. The time limitation commences anew at
the moment of the interruption. However, the power, as referred to in
paragraph (1), shall lapse no later than ten years after the violation
is committed, plus the period during which the time limitation is suspended
pursuant to Article 5:45, paragraph 3, General Administrative Law Act ('Algemene wet bestuursrecht').
Article 65 Decision deposited at the office of the Competition Authority
- 1. A decision imposing an administrative
fine or an order subject to periodic penalty payments, as referred to
in Article 56, shall be available for inspection at the Competition Authority
after it has been announced. The decision shall not be made available
for inspection before five days have passed since the decision was announced.
- 2. The decision shall be published in the
Netherlands Government Gazette. Information which does not qualify for
publication, pursuant to Article 10 of the Dutch Act on Public Access
to Government Information ['Wet openbaarheid van bestuur'], shall
not be available for inspection. The decision shall not be published in
the Government Gazette before five days have passed since the decision
was issued.
§ 4. Amendment or revocation of the order subject to periodic penalty
payments
Article 66 Amendment or revocation of the order subject to periodic penalty
payments
- 1. The Board may amend or revoke an order
subject to periodic penalty payments.
- 2. In derogation from paragraph 4.1.2 of
the General Administrative Law Act ('Algemene wet bestuursrecht'), the Board shall afford the violator
an opportunity to state its opinion, orally or in writing, before applying
paragraph (1).
Article 67 Pay day of a fine
A fine shall be paid within thirteen weeks of the date on which the fining
decision was announced.
Article 68 Suspension of the execution of an administrative fine in case
of an objection made
The execution of the writ concerning collection of the administrative
fine shall be suspended in case of objection.
Article 68a Default in payment of a fine
- 1. If the administrative fine was imposed
on an association of undertakings, and that association defaults in the
payment thereof within the term as referred to in Article 4:112, General
Administrative Law Act ('Algemene wet bestuursrecht'), as a result
of insolvency on the part of the association of undertakings, the Board
may collect the administrative fine from each undertaking of which a representative
was part of the decision-making body of the association of undertakings
when the decision to commit the violation was made.
- 2. If the administrative fine has not been
paid in full following collection in accordance with paragraph (1), the
Board may collect the outstanding amount from each of the undertakings
belonging to the association of undertakings that operated on the market
on which the violation was committed during the period in question.
- 3. If paragraphs (1) and (2) apply, no amount
shall be collected from any undertaking that exceeds 10% of the turnover
of that undertaking for the financial year preceding the decision.
- 4. An undertaking from which an administrative
fine is collected pursuant to paragraph (1) or (2) shall not be obliged
to pay that fine if it can demonstrate that it did not carry out the decision
of the association of undertakings to commit the violation and that either
it was not aware of that decision or actively distanced itself from that
decision before the investigation into the violation commenced.
§ 1. Violation of the obligation to cooperate
Article 69 Fine for not cooperating with investigating officials
- 1. The Board may impose on a party that acts
in contravention of Article 59a(3), Article 77a(3) or Article 5:20(1)
of the General Administrative Law Act ('Algemene wet bestuursrecht')
in respect of the officials, as referred to in Article 50(1), Article
52(1) or Article 89g(1), a fine not exceeding €450,000 or, if this
relates to an undertaking or an association of undertakings, and if this
amount is greater, an administrative fine not exceeding 1% of the turnover
of the undertaking or, respectively, the joint turnover of the undertaking
comprising the association of undertakings, in the financial year preceding
the decision.
- 2. Article 184 of the Netherlands Criminal
Code shall not apply to a violation, as referred to in paragraph (1).
Article 70 Additional order under a periodic penalty payment to provide
information
If the violation, referred to in Article 69(1), involves a refusal to
cooperate in the application of Article 5:17(1) of the General Administrative
Law Act ('Algemene wet bestuursrecht'), the Board may impose
an order subject to periodic penalty payments, ordering the business information
and documents specified in the order to be made available for inspection.
§ 1a. Violations of the obligations in respect of financial transparency
Article 70a Violations of the obligations in respect of financial transparency
In the event of a violation of Article 25b(1) or (2), or of the first
sentence of Article 25e, the Board may impose on the violator:
a. An administrative fine not exceeding €450,000
or, if the violation is committed by an undertaking or an association
of undertakings and if this is greater, a fine not exceeding 1 per cent
of the turnover of the undertaking or of the combined turnover of the
undertakings that are members of the association in the financial year
preceding the decision;
b. an order subject to periodic penalty payments.
Article 70b Breach of a seal
- 1. The Board may impose an administrative
fine not exceeding €450,000 or, if the breach is committed by an
undertaking or an association of undertakings and if this is greater,
a fine not exceeding 1 per cent of the turnover of the undertaking or
of the combined turnover of the undertakings that are members of the association
in the financial year preceding the decision, that breaks, cancels or
damages a seal, as referred to in Article 54(1), or circumvents the closure
intended by the seal in any other fashion.
- 2. Article 199 of the Netherlands Criminal
Code shall not apply to breaches as referred to in paragraph (1).
§ 2. Violations of concentration oversight
Article 71 Violation of conditions attached to an exemption
In the event of non-compliance with the conditions attached to an exemption,
pursuant to Article 40(2) or Article 46(2), as referred to in the respective
Article, the Board may impose an administrative fine not exceeding €450,000
on the violator or, if this is greater, an administrative fine not exceeding
10 per cent of the turnover of the undertaking or, if the violation is
committed by an association of undertakings, of the combined turnover
of the undertakings that are members of the association in the financial
year preceding the decision.
Article 72 Violation of the duty to explain earlier provided information
The Board may impose an administrative fine not exceeding €450,000
or, if this is greater, an administrative fine not exceeding 1 per cent
of the turnover of the undertaking or, if the violation is committed by
an association of undertakings, of the combined turnover of the undertakings
that are members of the association in the financial year preceding the
decision on a party that acts in contravention of Article 43.
Article 73 Violation of the duty to provide information
The Board may impose an administrative fine not exceeding €450,000
or, if this is greater, an administrative fine not exceeding 1 per cent
of the turnover of the undertaking or, if the violation is committed by
an association of undertakings, of the combined turnover of the undertakings
that are members of the association in the financial year preceding the
decision on a party that provides inaccurate or incomplete information
in the notification of a concentration, pursuant to Article 34, or in
an application for a license to implement a concentration, as referred
to in Article 41(1).
Article 74 Administrative fine or order under a periodic penalty payment
in case of other violations
In the event of a violation of:
i. Article 34,
ii. Article 39(2)(a) or (2)(b),
iii. Article 40(3)(a) or (3)(b),
iv. Article 41(1),
v. Article 46 (3) or (4),
the Board may impose on the violator:
(a) an administrative fine not exceeding €450,000 or, if
this is greater, an administrative fine not exceeding 10 per cent of the
turnover of the undertaking or, if the violation is committed by an association
of undertakings, of the combined turnover of the undertakings that are
members of the association in the financial year preceding the decision;
(b) an order subject to periodic penalty payments.
Article 75 Violations of conditions attached to license
In the event of non-compliance with the conditions imposed pursuant to
Article 37(4) or of non-compliance with the conditions attached to a license
pursuant to Article 41, the Board may impose on the violator:
a. an administrative fine not exceeding 450,000
or, if this is greater, an administrative fine not exceeding 10% of the
turnover of the undertaking or, if the violation is committed by an association
of undertakings, of the combined turnover of the undertakings that are
members of the association in the financial year preceding the decision;
b. an order subject to periodic penalty payments.
Article 75a Maximum administrative fine
The administrative fine imposed on the violator shall not exceed €450,000
in case, pursuant to Article 5:1, paragraph 3, General Administrative
Law Act ('Algemene wet bestuursrecht'), Article 51, paragraph
2 (2), Dutch Criminal Code has been applied to violations as referred
to in Articles 69, 70a, 70b and 71 through 75.
Article 76 Applicable provisions when an administrative fine is imposed
When imposing an administrative fine pursuant to Article 69, paragraph
1, Article 70a, 70b, 71, 72, 73, 74, 75 or 75a, Article 57, paragraph
2 shall apply.
§ 2a. Violation of a commitment decision
Article 76a Violation of a commitment decision
In the event of violation of Article 49a(4), the Board may impose, upon
the violator, an administrative fine not exceeding .€450,000 or,
if the violation is committed by an undertaking or an association of undertakings
and if this is greater, a fine not exceeding 10 per cent of the turnover
of the undertaking or of the combined turnover of the undertakings that
are members of the association in the financial year preceding the decision.
Article 77 Report of an official after a violation has been established
- 1. If an official, as referred to in Article
52(1), determines that a violation, as referred to in Article 69(1), Articles
70a(1), 70b(1), 71, 72, 73, 74(1), Article 75(1) or Article 76a has been
committed, the official shall draw up a report as referred to in Article
5:48, paragraph 1, General Administrative Law Act ('Algemene wet bestuursrecht').
- 2. Insofar the report shall be used in the
preparation of imposing an order subject to periodic penalty payments,
Article 5.4.2. of the General Administrative Law Act ('Algemene wet
bestuursrecht') shall also apply.
Article 77a Right to investigate accounts and records before a fine is
imposed
- 1. Before an administrative fine is imposed,
the accounts and records of the undertaking or association of undertakings
may be investigated by officials of the Competition Authority appointed
by a decision of the Board in order to determine the financial data to
be taken into account for the purposes of imposing the administrative
fine.
- 2. For the purposes of the investigation,
as referred to in paragraph (1), the officials, as referred to in paragraph
(1), may engage the assistance of an auditor, as referred to in Article
393(1) of Book 2 of the Netherlands Civil Code.
- 3. The undertaking or association of undertakings
shall cooperate in an investigation as referred to in paragraph (1).
Article 78 [repealed as of July 1, 2009]
Article 79 [repealed as of July 1, 2009]
Article 80 Other provisions applicable to an administrative fine
Articles 63, 67, 68, 68a apply to the administrative fine as referred
to in this Chapter.
Article 81 [repealed as of July 1, 2009]
Article 82 Interruption of a time limitation
- 1. The time limitation, as referred to in
Article 5:45, General Administrative Law Act ('Algemene wet bestuursrecht'),
shall be interrupted for two years by the launch of an investigation,
as referred to in Article 52.
- 2. The interruption of the time limit shall
commence on the first day on which at least one undertaking or association
of undertakings that participated in the violation, or one of the persons,
as referred to in Article 51(2)(2°) of the Netherlands Criminal Code,
is notified in writing of the act. Article 82a The power to impose an
order subject to periodic penalty payments, as referred to in Article
70a(1), shall lapse five years after the violation is committed.
Chapter 9 Provisional order subject to periodic penalty payments
Article 83 Provisional order subject to a periodic penalty payment
- 1. The Board may impose a provisional order
subject to periodic penalty payments if, in its provisional opinion, it
is probable that Article 6(1), Article 24(1) or Article 41(1) have been
violated and immediate action is required, in view of the interests of
the undertakings affected by the violation or in the interest of preserving
effective competition.
- 2. A provisional penalty obliges the violator
to perform or refrain from the actual or legal action described in the
said order.
- 3. Article 5.3.2 of the General Administrative
Law Act ('Algemene wet bestuursrecht') shall apply to the order
subject to periodic penalty payments.
Article 84 Notification of the intention to impose a provisional order
- 1. The Board shall notify the violator in
writing of its intention to impose a provisional order, stating its reasons
for this.
- 2. In derogation from paragraph 4.1.2 of
the General Administrative Law Act ('Algemene wet bestuursrecht'),
the Board shall afford the violator the opportunity to present their views
verbally or in writing before paragraph (1) is applied.
Article 85 Expiry of a provisional order
The provisional order shall in any event expire:
a. if a report, as referred to in Article 5:48,
General Administrative Law Act ('Algemene wet bestuursrecht'),
is not prepared within six months of the date on which the decision is
issued, on the date when those six months have expired;
b. as soon as a decision imposing an administrative
fine or an order subject to periodic penalty payments has been issued,
if the report is drawn up within the term referred to in paragraph (a).
Article 86 Other provisions applicable to a provisional order
Article 65 shall apply mutatis mutandis to a decision imposing a provisional
order.
Article 87 Revocation or amendment of a provisional order
- 1. The Board may revoke or amend a provisional
order.
- 2. Articles 84, 85 and 86 shall apply mutatis
mutandis.
Chapter 10 Application of European competition rules
Article 88 Board designated as Competition Authority for the Netherlands
The Board is designated as the Competition Authority for the Netherlands,
as referred to in Regulation 1/2003, and as the authorized authority,
as referred to in Regulation 139/2004, and shall exercise the existing
powers, pursuant to the Regulations based on Article
83 of the Treaty, to apply Article
81 and Article 82 of the Treaty,
as well as the existing power, pursuant to Article 84
of the Treaty, to determine the admissibility of competition agreements
and the abuse of a dominant position on the common market.
Article 89 Provisions applicable to the exercise of powers by the Board
Chapters 5A and 6, 7 and 9 shall apply mutatis mutandis to the exercising
of the powers, as referred to in Article 88.
Article 89a Board exercises powers based on European Regulation
- 1. The Board shall exercise existing powers,
pursuant to Article 29(2) of Regulation 1/2003, in declaring a block exemption
inoperative.
- 2. In preparing the decision, paragraph 3.4
of the General Administrative Law Act ('Algemene wet bestuursrecht')
shall apply.
- 3. A decision, pursuant to paragraph (1),
shall not come into force earlier than six weeks after the date on which
it is made available for inspection.
Article 89b Providing assistance in an inspection made by the European Commission
- 1. The officials, designated pursuant to
Article 50(1), are charged with providing assistance in an inspection
by the Commission of the European Communities, pursuant to a Competition
Regulation.
- 2. Article 5:12 of the General Administrative
Law Act ('Algemene wet bestuursrecht') shall apply mutatis mutandis.
- 3. In the event of resistance to the inspection,
the designated officials shall provide the necessary assistance to enable
the Commission of the European Communities to carry out the inspection,
if necessary with the assistance of the police.
Article 89c Required warrant for the provision of assistance in a search
- 1. If an undertaking or association of undertakings
resists an inspection by the Commission of the European Communities, pursuant
to a Competition Regulation, insofar as the inspection includes extensive
searching, a prior warrant issued by the examining magistrate, responsible
for processing criminal cases brought before the Court of Rotterdam, is
required for providing the necessary assistance. If possible, the warrant
shall be presented.
- 2. In assessing the application for a warrant,
the examining magistrate shall ensure that the proposed compulsory measures
are not arbitrary or disproportionate in relation to the object of the
inspection, as set out in the Competition Regulation and in community
law. Article 171 of the Netherlands Code of Criminal Procedure shall apply
mutatis mutandis. The examining magistrate may consult the Dutch Public
Prosecution Service before taking a decision.
- 3. Insofar as the request for a warrant was
rejected, the Board may appeal against the examining magistrate’s
decision before the District Court of Rotterdam within two weeks.
- 4. The examining magistrate may be present
during the inspection.
Article 89d Required warrant for an inspection
- 1. A prior warrant, issued by the examining
magistrate responsible for processing criminal cases brought before the
Court of Rotterdam, is required for an inspection, as referred to in Article
21(1) of Regulation 1/2003, carried out by the Commission of the European
Communities in buildings, premises and vehicles other than those of companies
and association of companies, including the private residences of directors,
managers and other personnel. If possible, the warrant shall be presented.
- 2. The examining magistrate shall assess
the application for a warrant, pursuant to Article 21(3) of the Regulation.
Article 171 of the Netherlands Code of Criminal Procedure shall apply
mutatis mutandis. The examining magistrate may consult the public prosecution
service before taking a decision.
- 3. Insofar as the request for a warrant was
rejected, the Board may appeal against the examining magistrate’s
decision before the District Court of Rotterdam within fourteen days.
- 4. The examining magistrate may be present
during the inspection.
- 5. Insofar as this relates to the inspection
of a private residence, this Article shall apply in derogation from Articles
2, 3 and 8 of the General Act on Entry of Dwellings ['Algemene wet
op het binnentreden'].
Article 89e Content of a required warrent
- 1. A warrant, as referred to in Article 89c(1)
or Article 89d(1), shall include the reasons for which it was issued,
shall be signed and shall state:
a. the name of the examining magistrate who
issued the warrant;
b. the name or the number and the capacity
of the person to whom the warrant has been issued;
c. the decision, in which the Commission of
the European Communities has ordered the inspection;
d. the date of issue.
- 2. If an inspection is of such an urgent
nature that the warrant cannot be issued in writing in advance, the examining
magistrate shall ensure that it is set out in writing as soon as possible.
- 3. The warrant shall remain in force at the
latest up to and including the third day following the date on which it
was issued.
- 4. Insofar as this relates to the inspection
of a private residence, this Article shall apply in derogation from Article
6 of the General Act on Entry of Dwellings ['Algemene wet op het binnentreden'].
Article 89f Report of an official who has provided assistance in a search
or inspection
- 1. The official, who provides assistance
in the inspection of a private residence or in the extensive searching
of a place other than a private residence, shall draw up a written report
on the inspection under oath or solemn promise of office.
- 2. In the report, he shall state:
a. his name or number and his capacity;
b. the date on which the warrant was issued
and the name of the examining magistrate who issued the warrant;
c. the decision, in which the Commission of
the European Communities has ordered the inspection;
d. the place of the inspection and the name
of the person, in respect of whom the inspection was carried out;
e. the manner in which entry was obtained and
the time at which the inspection commenced and was concluded;
f. the actions undertaken during the inspection
and all other occurrences;
g. the names or numbers and capacity of other
persons who participated in the inspection.
- 3. The report shall be sent to the examining
magistrate that issued the warrant at the latest on the fourth day following
the day on which the inspection was concluded.
- 4. A copy of the report shall be issued or
sent to the person on whose premises the inspection was carried out at
the latest on the fourth day following the day on which the inspection
was concluded. If the aim of the inspection so requires, the issuing or
dispatching of this report may be postponed. In such cases, the issuing
or dispatching of the report shall take place as soon as this is permissible
in the interests of the aforementioned aim. If it is not possible to issue
or dispatch the copy, the examining magistrate or the official, who has
provided assistance, shall ensure that the copy is available to the person,
on whose premises the inspection was carried out, for a period of six
months.
- 5. Insofar as this relates to an inspection
of a private residence, this Article shall apply in derogation from Articles
10 and 11 of the General Act on Entry of Dwellings ['Algemene wet
op het binnentreden'].
Article 89g Officials providing assistance in an inspection requested
by the European Commission
- 1. The officials, designated pursuant to
Article 50(1), are responsible for providing assistance in an inspection,
pursuant to a Competition Regulation, by the Competition Authority carried
out at the request of the Commission of the European Communities or at
the request of the Competition Authority of another Member State of the
European Union.
- 2. In carrying out the inspection, the designated
officials shall exercise the regulatory and investigative powers assigned
to them, pursuant to Chapter 6.
Article 89h Right of the Board or European Commission to present submissions
in legal proceedings
- 1. The Board or the Commission of the European
Communities, without acting as a party, may present written submissions
in the proceedings before the Administrative Court in respect of a judicial
appeal, pursuant to the first paragraph of Article 15(3) of Regulation
1/2003, if the Board or the Commission of the European Communities has
expressed its wish to do so. The Court may set a deadline for this. With
the permission of the Court, they may also make verbal submissions during
the hearing.
- 2. Following an application, pursuant to
the second paragraph of Article 15(3) of Regulation 1/2003, the Court
shall provide the Board and the Commission of the European Communities
with all documents referred to in the aforementioned provision. The parties
may give their opinions on the documents to be issued within a term to
be determined by the Court.
- 3. The parties may respond to submissions
presented by the Board or the Commission of the European Communities within
a term to be determined by the Court. The Court may provide the parties
with an opportunity to respond to each other's submissions.
Article 89i Additional information requested by the Administrative Court
- 1. If the Administrative Court wishes to
request information or advice, pursuant to Article 15(1) of Regulation
1/2003, it shall notify the parties in writing of the questions to be
asked and the documents to be sent.
- 2. The parties may give their opinion on
the questions to be asked and the documents to be sent in writing within
a term to be determined by the Court.
- 3. The Clerk of the Court shall send a copy
of the answer to the request for information or advice to the parties.
- 4. The parties may give their opinion on
the answer or advice within a term to be determined by the Court. Article
8:29 of the General Administrative Law Act ('Algemene wet bestuursrecht')
shall apply mutatis mutandis.
Article 89j Copy of the decision of the Administrative Court issued to
the European Commission
Pursuant to Article 15(2) of Regulation 1/2003, the Clerk of the Court
shall issue a copy of the ruling of the Administrative Court in respect
of the application of Articles 81
and 82 of the Treaty to the Commission of the European
Communities at the earliest opportunity. Except where this relates to
rulings or decisions of the Dutch Supreme Court or rulings of the Administrative
Law Division of the Council of State, the ruling shall be issued with
the intervention of the Council for the Administration of Justice. If,
in the opinion of the Administrative Court, the protection of important
interests of parties or third parties gives cause for this, the Clerk
of the Court may issue an anonymous copy of the ruling.
Article 90 Restriction regarding the use of received information
Information or data relating to an undertaking, obtained in the course
of any activity in relation to the implementation of this Act, may be
used solely for the purpose of the application of this Act, for the Competition
Regulations, the Electricity Act 1998, the Gas Act and the Interim Act
on Media Concentrations ['Tijdelijke wet mediaconcentraties']
with the exception of information, as referred to in Article 28(1) of
Regulation 1/2003 and Article 17(1) of Regulation 139/2004.
Article 91 Provision of received information to foreign authorities
In derogation from Article 90, the Board is authorized to provide information
or data, obtained in the performance of the duties assigned to him by
this Act, to:
1° a foreign institution which is responsible, pursuant to national
statutory provisions, for the application of competition rules, insofar
as such information or data are, or could be, of significance for the
performance of the duties of that institution and, in the Board's opinion,
the provision of such information or data is in the interests of the Dutch
economy, provided that:
2° an administrative body which is responsible for duties relating,
or partly relating, to the application of competition rules, pursuant
to statutory provisions other than this Act, in as far as such information
or data are, or could be, of importance in the performance of the duties
of that body, provided that:
(a) the confidentiality of the information or data is sufficiently
protected; and
(b) sufficient assurances are given that the information or data
will not be used for any purpose other than that for which they are provided.
Article 92 Advisory Commission
- 1. A commission, as referred to in Article
7:13 of the General Administrative Law Act ('Algemene wet bestuursrecht'),
shall advise on any administrative appeals against a decision in connection
with the imposing of an administrative fine or order subject to periodic
penalty payments.
- 2. The members of the advisory commission,
as referred to in paragraph (1), shall not be employees of the Dutch Ministry
of Economic Affairs, nor can a member of the Board be part of such an
advisory commission.
Article 93 Court of Rotterdam competent to hear appeals against decisions
made under the Competition Act
- 1. In derogation from Article 8:7 of the
General Administrative Law Act ('Algemene wet bestuursrecht'),
the Court of Rotterdam shall be the competent court in respect of judicial
appeals against decisions pursuant to this Act.
- 2. Article 7:1 of the General Administrative
Law Act ('Algemene wet bestuursrecht') shall not apply to decisions,
as referred to in Articles 37(1), 44(1) and 47(1).
- 3. Consumer organizations shall be deemed
to be stakeholders in decisions based on this Act.
- 4. Upon application of Article 3.11(2) of
the General Administrative Law Act ('Algemene wet bestuursrecht')
in cases in which a consumer organization, as referred to in paragraph
(3), is a stakeholder, the Board may, based on serious considerations,
make a distinction between the legal entities or natural persons, as referred
to in Article 59(3), and the said consumer organization for the purposes
of judging the question of whether documents or parts of documents pertaining
to the case are to be made available for inspection.
Article 93a Court fees
- 1. In accordance with regulations to be set
under or pursuant to Order in Council, a fee is due for issuing a decision
as referred to in Articles 25, 37, 40, 44, 46 and 47, which should not
exceed the costs resulting from the issuance of decisions.
- 2. A fee as referred to in paragraph (1)
is due by the applicant or, in case of a decision under Articles 37 or
40, by the one that had made the notification.
- 3. Insofar it did not already apply, part
4.4 of the General Administrative Law Act ('Algemene wet bestuursrecht')
also applies to the fees as referred to in paragraph (1), except Articles
4:85 and 4.95.
- 4. The fee that is due can be collected by
writ. Article 68 is also applicable.
Article 93b [repealed as of July 1, 2009]
Article 94 [this Article amends the Economic Offences Act]
Article 95 [the Economic Competition Act is repealed]
Article 96 [this Article amends the Income Tax Act of 1964]
Article 97 [this Article amends the Maritime Transport Act]
Article 98 [this Article amends the Administrative Organizations
Administrative Jurisdiction Act]
Article 99 [this Article amends the Council of State Act]
Chapter 14 Transitional provisions
Article 100 Application of other provisions
- 1. Article 88 shall apply mutatis mutandis
in the application of Regulation (EEC) No. 4064/89 of the Council of the
European Communities of 21 December 1989 in relation to the Regulation
of concentrations of undertakings (OJEC 1990, L 257), pursuant to Article
26(2) of Regulation 139/2004.
- 2. Article 89g or Articles 89b, 89c, 89e
and 89f respectively shall apply mutatis mutandis in the application of
Article 12(1) or Article 13(5) and (6) of Regulation (EEC) No. 4064/89
of the Council of the European Communities of 21 December 1989 in relation
to the Regulation of concentrations of undertakings (OJEC 1990, L 257),
pursuant to Article 26(2) of Regulation 139/2004.
Article 101 [repealed as of August 1, 2004]
Article 102 [repealed as of August 1, 2004]
Article 103 [repealed as of August 1, 2004]
Article 104 [repealed as of October 1, 2007]
Article 105 [repealed as of October 1, 2007]
Article 106 Economic offences
Punishments and measures imposed for violations of provisions of or pursuant
to the Economic Competition Act, constituting economic offences and committed
before the date on which Article 94 comes into force, shall remain in
force.
Article 107 Entry into force
- 1. The Chapters of this Act shall come into
force as of a date to be determined by Royal Decree, which date may vary
for each Chapter or paragraph thereof [03-10-1997].
- 2. [repealed]
- 3. Article 32 shall be repealed two years
after the date on which it comes into force.
Article 108 [this Article amends this Act]
Article 109 [this Article amends this Act]
Article 110 Citation
This Act shall be cited as: the ‘Competition Act’.
We order and command that this Act shall be published in the Bulletin
of Acts and Decrees, and that all ministerial departments, authorities,
bodies and officials whom it may concern shall diligently implement it.
Done at The Hague, 22 May 1997.
Treaty establishing the European Community
[consolidated
text]
Title VI Common rules on competition, taxation and approximation of laws
Chapter 1 Rules on competition
Section 1 Rules applying to undertakings
Article 81 EEC Treaty
- 1. The following shall be prohibited as incompatible
with the common market: all agreements between undertakings, decisions
by associations of undertakings and concerted practices which may affect
trade between Member States and which have as their object or effect the
prevention, restriction or distortion of competition within the common
market, and in particular those which:
(a) directly or indirectly fix purchase or
selling prices or any other trading conditions;
(b) limit or control production, markets, technical
development, or investment;
(c) share markets or sources of supply;
(d) apply dissimilar conditions to equivalent
transactions with other trading parties, thereby placing them at a competitive
disadvantage;
(e) make the conclusion of contracts subject
to acceptance by the other parties of supplementary obligations which,
by their nature or according to commercial usage, have no connection with
the subject of such contracts.
- 2. Any agreements or decisions prohibited
pursuant to this article shall be automatically void.
- 3. The provisions of paragraph 1 may, however,
be declared inapplicable in the case of:
- any agreement or category of agreements between undertakings,
- any decision or category of decisions by associations of undertakings,
- any concerted practice or category of concerted practices,
which contributes to improving the production or distribution of goods
or to promoting technical or economic progress, while allowing consumers
a fair share of the resulting benefit, and which does not:
(a) impose on the undertakings concerned restrictions
which are not indispensable to the attainment of these objectives;
(b) afford such undertakings the possibility
of eliminating competition in respect of a substantial part of the products
in question.
Article 82 EEC Treaty
Any abuse by one or more undertakings of a dominant position within the
common market or in a substantial part of it shall be prohibited as incompatible
with the common market in so far as it may affect trade between Member
States.
Such abuse may, in particular, consist in:
(a) directly or indirectly imposing unfair
purchase or selling prices or other unfair trading conditions;
(b) limiting production, markets or technical
development to the prejudice of consumers;
(c) applying dissimilar conditions to equivalent
transactions with other trading parties, thereby placing them at a competitive
disadvantage;
(d) making the conclusion of contracts subject
to acceptance by the other parties of supplementary obligations which,
by their nature or according to commercial usage, have no connection with
the subject of such contracts.
Article 83 EEC Treaty
- 1. The appropriate regulations or directives
to give effect to the principles set out in Articles 81 and 82 shall be
laid down by the Council, acting by a qualified majority on a proposal
from the Commission and after consulting the European Parliament. - 2.
The regulations or directives referred to in paragraph 1 shall be designed
in particular:
(a) to ensure compliance with the prohibitions
laid down in Article 81(1) and in Article 82 by making provision for fines
and periodic penalty payments;
(b) to lay down detailed rules for the application
of Article 81(3), taking into account the need to ensure effective supervision
on the one hand, and to simplify administration to the greatest possible
extent on the other;
(c) to define, if need be, in the various branches
of the economy, the scope of the provisions of Articles 81 and 82;
(d) to define the respective functions of the
Commission and of the Court of Justice in applying the provisions laid
down in this paragraph;
(e) to determine the relationship between national
laws and the provisions contained in this section or adopted pursuant
to this article.
Article 84 EEC Treaty
Until the entry into force of the provisions adopted in pursuance of Article
83, the authorities in Member States shall rule on the admissibility of
agreements, decisions and concerted practices and on abuse of a dominant
position in the common market in accordance with the law of their country
and with the provisions of Article 81, in particular paragraph 3, and
of Article 82.
Article 85 EEC Treaty
- 1. Without prejudice to Article 84, the Commission
shall ensure the application of the principles laid down in Articles 81
and 82. On application by a Member State or on its own initiative, and
in cooperation with the competent authorities in the Member States, which
shall give it their assistance, the Commission shall investigate cases
of suspected infringement of these principles. If it finds that there
has been an infringement, it shall propose appropriate measures to bring
it to an end.
- 2. If the infringement is not brought to
an end, the Commission shall record such infringement of the principles
in a reasoned decision. The Commission may publish its decision and authorise
Member States to take the measures, the conditions and details of which
it shall determine, needed to remedy the situation.
Article 86 EEC Treaty
- 1. In the case of public undertakings and
undertakings to which Member States grant special or exclusive rights,
Member States shall neither enact nor maintain in force any measure contrary
to the rules contained in this Treaty,
in particular to those rules provided for in Article 12 and Articles 81
to 89.
- 2. Undertakings entrusted with the operation
of services of general economic interest or having the character of a
revenue-producing monopoly shall be subject to the rules contained in
this Treaty, in particular to the rules on competition, in so far as the
application of such rules does not obstruct the performance, in law or
in fact, of the particular tasks assigned to them. The development of
trade must not be affected to such an extent as would be contrary to the
interests of the Community.
- 3. The Commission shall ensure the application
of the provisions of this Article and shall, where necessary, address
appropriate directives or decisions to Member States.