Legal framework
In the Netherlands, the statutory framework with respect to abuse of dominance consists of two articles in the Dutch Competition Act (DCA). The prohibition on abuse of dominance is laid down in Article 24 of the DCA, which was modelled on Article 102 of the Treaty on the Functioning of the European Union (TFEU). Article 25 of the DCA provides for the possibility of an exemption from the application of Article 24 in respect of undertakings entrusted with the operation of services of general economic interest (insofar as the application of Article 24 would obstruct this operation), and thus substantively resembles Article 106(2) of the TFEU. The competition rules are enforced by the Authority for Consumers and Markets (ACM).
The legislature expressly intended for the decision practice of the European Commission and the case law of the EU courts to be leading for the interpretation of Articles 24 and 25 of the DCA. Furthermore, the legislature has indicated that the DCA should be neither more nor less lenient than the EU competition rules.
The examples of abuse of dominance that are listed in Article 102 of the TFEU are not listed in Article 24 of the DCA but can be found copied almost verbatim in the explanatory memorandum to the DCA.
Insofar as public or state-owned enterprises operate as 'undertakings' within the meaning of the DCA, they are bound by the same rules as private enterprises. Since 1 July 2012, the DCA has been supplemented with certain special rules applicable to public enterprises, but these do not specifically relate to abuse of dominance.
There is special legislation comprising rules on market power in respect of the telecommunications sector (telephone and internet services), the electricity and gas sectors, the postal sector and the transportation sector. These sector-specific regimes are also supervised by the ACM. For the healthcare sector, pursuant to the Healthcare Market Regulation Act, the Dutch Healthcare Authority is tasked with supervision of healthcare companies with 'significant market power'.
Finally, in 2024, the Dutch government submitted a bill will empower the ACM to apply the Digital Markets Act (DMA), in the sense of assisting the European Commission.
Enforcement practice and policy
The Netherlands ranks among the countries with the lowest number of abuse of dominance interventions (i.e., decisions by the national competition authority establishing an infringement). That is the conclusion of a study by economic research organisation SEO, commissioned by the Dutch Ministry of Economic Affairs and published in 2011 (the SEO study). In the years analysed in the study (2005 to 2009), only one out of 18 investigations into abuse of a dominant position resulted in an intervention, and that intervention was eventually overturned on appeal.
The SEO study sought to explain the relatively low enforcement rate of abuse of dominance cases in the Netherlands, but failed to arrive at any conclusive observations; however, it is probably linked to the prioritisation policy of the ACM, and its predecessor, the NMa, before that, in combination with the ACM's historically strong focus on cartel enforcement. The ACM is not obliged to investigate every suspected infringement or complaint: it sets its priorities on the basis of economic significance, consumer interest, severity of the infringement and likely efficiency of an intervention. The ACM had pointed out itself in an official reaction to the SEO study that because of the leniency programme (which is not applicable to unilateral conduct), cartel cases are generally easier to prove than abuse cases. Furthermore, the ACM at the time suggested that the relatively elaborate special regulation in respect of sectors operated by former state monopolies has rendered the generic abuse of dominance framework less relevant in the Netherlands.
In 2021 there seems to have been a trend break, because in that year the ACM took two decisions in which it found an abuse of dominance. Both of them were exploitative abuses. Another significant development from 2021 concerns a judgment from the Trade and Industry Appeals Tribunal (CBb), the highest appellate court in the Netherlands, in a high profile case of the ACM that was annulled by the Court. Concomitantly, the ACM announced in its 2021 enforcement priorities to focus more on the enforcement of abuse of dominance cases in 2022, especially in the pharmaceuticals and digital sectors.
In 2022 and 2023, however, the ACM did not take any (fining) decisions in which it found an abuse of dominance. Thus, 2021 seems to have been an exception in that sense.
There is also generally little private enforcement of the prohibition on abuse of dominance in the Netherlands. The SEO study, for example, found that there have been only 42 court cases that featured a claim of abuse of dominance in the five-year study period of 2005 to 2009 (claims that, in most cases, only served as an ancillary argument), none of which led to an actual finding of an abuse of dominance. The past 10 years have not seen a significant increase in civil litigation regarding abuse of dominance. The case law in the Netherlands has been too sparse and fragmented to be able to deduce any clear trends, although in general it can be concluded that the claimant faces a high burden of proof, which is often not met. Generally, the ACM and the courts in the Netherlands try to adhere closely to the Commission's and EU courts' application of the concept of abuse of dominance, and have been following the Commission's lead in emphasising the importance of an effects-based analysis and attach great value to economic evidence in abuse cases. However, the two abuse of dominance cases that the ACM concluded in 2021 are based on exploitative theories of harms and have in part relied on qualitative assessments of the behaviour of the dominant undertakings in question (i.e., Apple and Leadiant).
