The European Commission is not alone in its quest for more protection against buyer power. The Dutch parliament recently adopted a bill to increase the market share threshold of the national de minimis clause to provide small and medium-sized companies with more leeway to join forces against buyer power.11
Currently, the de minimis clause laid down in the Dutch Competition Act provides for an exemption for restrictive agreements, including hardcore cartels, where no more than eight participants with an aggregate turnover of less than EUR 5.5 million (for companies whose primary business is in the affected markets) or EUR 1.1 million (for other companies) are involved. Also exempt are restrictive agreements where the parties’ combined turnover does not exceed EUR 40 million and their aggregate market share remains below 5%. The latter thresholds have been based on the European Commission’s guidelines on the effect on trade concept12, according to which inter-State trade will not be appreciably restricted when these thresholds are met.
The increased buyer power of big retailers was one of the main reasons why the European Commission introduced an additional buyer’s market share threshold in its new Block Exemption on vertical restraints.13 The initiative to raise the national de minimis clause was also inspired by increased buyer power: it intends to provide small companies more leverage against big retailers by being able to conclude e.g. joint selling arrangements without competition concerns.14
The recently adopted bill proposes to amend the latter exemption by abandoning the turnover threshold and raising the market share threshold to 10%. As a result, the national de minimis clause will no longer be in line with the thresholds of the European Commission’s guidelines. One of the main hang-ups of the bill was whether this would constitute an infringement of European law, since it would mean that certain hardcore cartels caught by Article 101 TFEU due to an appreciable effect on inter-State trade, would be exempted under national law. The Parliament adopted the bill on 15 June 2010.
Another recent initiative against buyer power is the Minister of Economic Affairs’ current examination of the possibility of a voluntary code of conduct between suppliers and customers against unilateral termination of agreements by suppliers without prior consultation of the specific customer.15 The European Commission is also looking into resolving unfair contractual practices in the retail chain.16