Buckle up: the ACM is racing ahead with speedy solutions and more fines
The Dutch competition watchdog ACM will bite faster and fiercer, according to its new chairman Martijn Snoep. The ACM plans to shorten the length of its investigations by deciding on their merits sooner. This will free up time and capacity to deal with more cases.
In addition, it intends to impose more fines. Swifter and stricter outcomes can thus be expected, particularly in regard of the ACM's newly designated focus areas. At horizontal level, the ACM will concentrate on purchasing cartels and the coordination of employment conditions, while at vertical level resale price maintenance and online sales restrictions are on the ACM's priority list. Companies are therefore well-advised to double-check whether their agreements with distributors and their contacts with competitors are in line with the ACM's recently published vertical and horizontal guidelines.
The ACM chairman recently confirmed to newspaper NRC and news radio station BNR that the average length of ACM investigations will be shortened and that the number of fines it issues will increase. This marks the end of the ACM's earlier, more 'informal', enforcement style.
It is also marks the end of the ACM's more liberal approach to vertical restraints. The ACM joined the European Commission's battle against (online) vertical restraints in late December 2018 by starting an investigation into vertical price-fixing of consumer goods by manufacturers and online and offline shops. Its recently-published guidelines on vertical agreements, together with its expressly mentioned focus on "illegal (price) agreements between suppliers and distributors and on online sales restrictions", show that it has no intention of easing up the battle yet. The ACM's vertical guidelines provide practical examples of online practices companies currently face, such as online sales restrictions, dual pricing and online advertisement restrictions. They are therefore a welcome addition to the European Commission's guidelines on vertical restraints, which are currently under review. Similarly, the ACM's guidelines on horizontal agreements provide useful guidance for companies when dealing with competitors. The horizontal guidelines' paragraphs on purchasing cartels and coordination of employment conditions are particularly worth reading, now that the ACM has designated these as focus area. The ACM is likely to start looking for non-poaching clauses, wage-fixing and collusion of hiring conditions soon.
Companies should therefore double-check their distribution arrangements and online sales practices for potential antitrust risks. They should also keep their HR staff aware of the potential antitrust risks of certain recruiting and hiring practices.
This article was published in the Competition Law Newsletter of March 2019. Another article in this newsletter:
