Contrary to EU case law on Article 81 EC, the Court of Appeal of Arnhem recently reiterated that the cartel prohibition laid down in Article 6 of the Dutch Competition Act is not a matter of public policy.15

In a dispute regarding a franchise agreement, the Court of Appeal of Arnhem reiterated that it is not required to automatically apply the cartel prohibition of Article 6 of the Competition Act to the franchise agreement, but only if one of the parties explicitly relies on the prohibition. The Court referred to the recent ruling of the Netherlands Supreme Court16, in which it was held that Article 6 of the Competition Act is not a matter of public policy that requires the court, even if it would thereby step outside the limits of the legal dispute, to apply on its own motion.

In contrast, the European Court of Justice only recently confirmed that Article 81 EC is a matter of public policy, essential for the accomplishment of the tasks entrusted to the Community, which must be automatically applied by national courts.17