The Court of Appeal Amsterdam handed down an interesting judgment (LJN: BX0460) in a civil case in which it ruled that an obligation imposed on the members of a trade association to exclusively purchase certain software violates article 6 of the Dutch Competition Act (the equivalent of article 101 of the TFEU).
The Dutch Association of Real Estate Brokers and Real Estate Experts (the "NVM") had developed an office software system called "Masterplan 2000". The NVM then obligated its members (i.e. 80% of all sworn estate agents in the Netherlands) to exclusively purchase the Masterplan 2000 system. Furthermore, the members were obligated to purchase at least one licence from another specified computer programme. The question which the Court was facing was whether the NVM's conduct violated the prohibition on anti-competitive agreements and/or rather the NVM abused its dominant position.
The Court considered first of all that the obligation imposed on the NVM members to exclusively purchase Masterplan 2000 did not have as its object the restriction of competition. The Court however ruled that the NVM's decision imposing this duty on its members did have the effect of restricting competition on the Dutch market for office software for estate agents. Furthermore, this restriction was considered to be appreciable. The Court rejected the NVM's claim that its decision was exempt pursuant to article 6 (3) of the Dutch Competition Act (the equivalent of article 101 (3) of the TFEU), as the NVM had not adequately substantiated that sufficient competition would remain.
In addition, HPC claimed that the NVM delayed the supply of certain specifications to ensure the interoperability between the software of HPC and the NVM's software. HPC argued that this conduct constituted an abuse of a dominant position. The Court however rejected this claim, because HPC had not sufficiently substantiated that the refusal to supply by the NVM did in fact amount to an abuse of a dominant position. The reason for this was that 20% of the estate agents in the Netherlands are not associated with the NVM. These estate agents are therefore not bound by the obligations imposed by the NVM. This led the Court to the conclusion that in any event there was no complete elimination of the competition on the relevant market.