On 20 April 2015 the Dutch Authority for Consumers and Markets (“ACM”) published new guidance regarding its enforcement priorities in relation to distribution agreements, noting that its enforcement efforts will be focused on agreements having the most significant impact on consumer welfare. The 28-page document explains that before opening an investigation, the ACM will first conduct an “initial substantive investigation”, seeking to pre-assess the impact on consumers and the economic effects of any agreement. The ACM will look at the market power of the companies involved, the scope of the agreements and whether retailers are abusing their buying power.
Although it is focused on vertical restraints, the guidance also provides valuable insight into the ACM’s enforcement priorities in the online sector more broadly. One of the case studies discussed in the guidance describes a scenario in which a bicycle distributor puts pressure on his supplier to cut off an online distributor (who was undercutting other distributors’ prices). Illustrating the steps of the “initial substantive investigation”, the ACM indicated that it could consider such a case to be a priority if the bicycle manufacturer holds a significant position on the bicycle market and the exclusion of one online distributor leads to a non-minor restriction on online retail.
The ACM also outlines its position regarding Most Favoured Nation Clauses (MFNs) in the context of sales through online platforms, explaining that MFNs are more likely to hinder new entry by platforms, lead to increased prices for sales on platforms, and reduce efficiencies. The ACM recommends a deeper investigation of MFNs.
The Dutch guidance comes hot on the heels of the Slovak guidance on vertical agreements issued last week and statements by the Head of the Belgium Competition Authority and the Director-General for Competition of the European Commission confirming that vertical restraints (including MFNs) are “high on the agenda” of EU competition enforcers.