On 20 April 2015, the Dutch competition authority ("ACM") published a long-awaited document setting out its strategy and priorities concerning vertical agreements. The ACM will give priority to agreements which can be harmful to consumers and it will focus on cases in which it can intervene effectively, for instance by clarifying a legal norm. The enforcement priorities of the ACM are therefore in line with the EU Commission Guidelines on Vertical Restraints and EU competition law and practice more generally. The ACM policy document does not contain guidance on what is and what is not allowed in the interaction between suppliers and retailers in, for instance, the fast-moving consumer goods area. The implication is that the ACM does not consider this a priority area, other than for example the German competition authority.
The ACM first sets out the existing legal framework applicable to vertical agreements and summarizes the very limited ACM enforcement practice in this field. So far, the ACM has left the application of the competition rules to vertical agreements mainly to private parties and thus civil law courts. Recent market developments and the response of other national competition authorities ("NCAs") have prompted the ACM to provide insight on its enforcement policy in relation to vertical agreements.
In deciding whether or not to take enforcement action, the ACM will normally first examine the degree of market power of the parties involved in the vertical agreement within the specific distribution chain and the existence of similar parallel vertical agreements in the market. The ACM says it will also examine whether retailers forced the supplier to enter into the vertical agreement at issue (although the ACM does not explain what the relevant test is to establish such coercion). The ACM also pledges to consider possible efficiency gains. In five practical scenarios the ACM illustrates how it will consider these factors in a specific case.
With the policy document, the ACM underscores it is actively monitoring developments in the enforcement of the competition rules in relation to vertical restraints by both the Commission and NCAs. Yet, the ACM reconfirms its view that in the absence of market power vertical agreements are more often than not beneficial for consumers. The ACM document is a useful reconfirmation of the relatively lenient ACM approach to vertical restraints. At the same time, it can serve as a roadmap for complainants who are calling on the ACM to take action in the area of vertical restraints.