The Netherlands

• Pages: 315-338

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Chapter X

THE NETHERLANDS

A. Sources and Basics of Antitrust Law in the Netherlands

As the Netherlands is a member state of the European Union, two

sets of competition rules apply: EU competition law and Dutch

competition law. The EU competition rules have been described in detail

in the EU Chapter above.1 This chapter focuses on domestic Dutch law.

The general rules of Dutch competition law are stated in the Dutch

Competition Act2 (Mededingingswet, CA), which came into force on

January 1, 1998. The enforcement of the CA is entrusted to the Dutch

Competition Authority (Nederlandse Mededingingsautoriteit, NMa),

which is based in The Hague and is under the responsibility of the Dutch

Minister of Economic Affairs.3

The CA was meant to be and has been significantly influenced by the

judgments of the European Court of Justice (ECJ) and the General Court

(GC) as well as the enforcement policy and individual decisions of the

European Commission (Commission). This influence is dynamic in the

sense that future developments in EU competition law will automatically

affect the interpretation of Dutch competition law.4 The CA explicitly

provides for the application of Articles 101 and 102 of the Treaty on the

Functioning of the European Union (TFEU)5 by the NMa,6 and the Dutch

1. See supra Chapter VI (“The European Union”).

2. Dutch Competition Act, Act of 22 May 1997, Staatsblad van het

Koninkrijk der Nederlanden [Stb.] 1997, 242. Where this chapter refers

to Articles without citing a source, such reference is to the Competition

Act.

3. Id. art. 2.

4. Kamerstukken II, Explanatory Memorandum to the Competition Act

(Memorie van Toelichting), 1995–96, 24 707, No. 3 [hereinafter

Explanatory Memorandum].

5. Treaty on the Functioning of the European Union, Sept. 5, 2008, 2008

O.J. (C 115) 47 as amended by the Treaty of Lisbon Amending the

Treaty on European Union and the Treaty Establishing the European

Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of

Lisbon]. The texts of Articles 101 and 102 of the TFEU are identical to

316 Antitrust Issues in International IP Licensing Transactions

competition rules are neither more restrictive nor more liberal than EU

competition law.7

1. Agreements that Restrict Competition

Article 6 of the CA is almost identical to Article 101 of the TFEU

and prohibits agreements, decisions, and concerted practices between

undertakings and associations of undertakings whose object or effect is

to restrict competition within all or part of the Dutch market.8 Prohibited

agreements are automatically null and void, unless an exemption is

applicable.9 Exemptions are provided for on the same grounds as those

set forth in Article 101(3) TFEU.10 In line with EU competition law,

companies have to assess for themselves whether their agreements meet

the exemption criteria.

More specifically, EU block exemptions and individual exemptions

have direct effect in the Netherlands. 11 Parties to IP licensing

transactions should, therefore, consider the EU rules set forth in

Commission Regulation 772/2004 of April 27, 2004 on the application of

Article 81(3) of the Treaty to categories of technology transfer

agreements12 (TTBER) and the Commission Guidelines that supplement

the TTBER and assist in the evaluation pursuant to Article 101 of the

TFEU.13

Under the EU enforcement system, individual and block exemptions

are applicable as such; no transposition measures into Dutch law are

needed. However, by operation of Dutch competition law, EU block

exemptions are also applied to purely national situations in the

Netherlands (i.e., to business practices that do not affect interstate trade

the text of Articles 81 and 82 of the EC Treaty, which was amended and

renumbered by the Treaty of Lisbon effective December 1, 2009.

6. Competition Act, supra note 2, art. 88.

7. Explanatory Memorandum, supra note 4.

8. Competition Act, supra note 2, art. 6(1).

9. Id. art. 6(3). The exemptions are contained in Article 7 of the Act.

10. Id. art. 6(3)(1).

11. Id. arts. 12, 14.

12. Commission Regulation 772/2004 of April 27, 2004 on the Application

of Article 81(3) of the Treaty to Categories of Technology Transfer

Agreements, 2004 O.J. (L 123) 11 [hereinafter TTBER].

13. Guidelines on the Application of Art. 81 of the EC Treaty to Technology

Transfer Agreements, 2004 O.J. (C 101) 2 [hereinafter Guidelines].