On 24 January 2014 the Dutch Supreme Court ruled in the case between the Dutch Association of Brokers (Nederlandse Vereniging van Makelaars o.g. en Vastgoeddeskundigen, "NVM") and the curator in the bankruptcy of HPC Hard & Software services ("HPC"). The Dutch Supreme Court held that a decision by an association such as the NVM can fall under the scope of Article 6 of the Dutch Competition Act ("DCA"), even if the decision does not directly relate to the brokers' economic activity.
HPC was a software developer that had established an information exchange system for the supply and demand of real estate. In addition, HPC had developed software for the computerization of brokers' offices. NVM had also created an information exchange system, which had a separate module that contained computerization features. Members of the NVM were required to use the NVM exchange system and the separate module.
After the bankruptcy of HPC in 2004, the curator held NVM liable for damages due to unlawful conduct, including a breach of Article 6 DCA. In this respect, NVM argued that it did not infringe Article 6 DCA as the decision which required the members to use a specific system and module concerned a market upon which its members were not active.
The Dutch Supreme Court dismissed NVM's argument, by referring to the wording of Article 6 DCA and the case law of the European Court of Justice (Case C-1/12 Ordem dos Técnicos Oficiais de Contas). The Dutch Supreme Court held that a decision by an association of undertakings can also infringe Article 6 DCA if the decision, although not concerning a market on which the members practice their profession, prevents, restricts or distorts competition on a market on which the professional association itself has an economic activity.