Earlier this year we concluded in our chronical on Dutch civil case law in the field of competition law that civil courts set the bar very high and are not easily inclined to enforce competition law. In 2015, for instance, claims based on competition law were not successful in a single (stand-alone) case. We therefore concluded that litigants are confronted with a competition law enforcement gap. Most of the civil claims based on competition law were disallowed because the strict requirements stipulated by civil courts regarding the obligation to furnish facts and the burden of proof had not been met (see our earlier blog on this subject).
Although Dutch civil courts have again rejected claims based on competition law in several cases these past few months, a few interesting judgments have also been passed that suggest a more lenient approach. The Court of The Hague, for instance, found that CBL, the trade association for the supermarket sector, among others, had breached the cartel prohibition under Section 6 of the Mededingingswet (Competition Act). In its Age Verification Code for the sale of alcohol in supermarkets, CBL had prescribed the manner in which the cashiers of the affiliated supermarkets were required to verify a customer’s age. Since the Ageviewers system is based on a different system, it consequently could not be used in supermarkets, in the court’s opinion. The court therefore found that the CBL’s Code (and the related “Not yet 20” campaign) had an anticompetitive effect. That same day a judgment was published in which the Court of Noord-Holland found that a supplier’s refusal to supply onion seed was in breach of the prohibition on resale price maintenance under Section 6 of the Competition Act.
Another example is a case before the Court of Appeal of Arnhem-Leeuwarden regarding the sports physicals for participants in the Alpe-d’huZes event. Participants in that event must submit to a sports physical. FSMI, a trade association in which 90% of sports doctors who provide sports physicals are affiliated, had made agreements with sports physicals institutions regarding the sports physicals to be carried out by them. In its decision FSMI set fixed rates for three types of physicals (to be exclusively carried out by FSMI’s members). The Court of Appeal found that this eliminated price competition between sports physicals institutions in offering sports physicals and that the FSMI’s decision therefore had an anticompetitive effect.
It may become clear later this year whether civil courts are indeed increasingly inclined to adopt a more lenient approach to competition law or whether the cases addressed above were merely “chance occurrences”.