Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff

 
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Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
EU COMPETITION TEAM

                      Competition law in the Netherlands 2019
                      An annual overview by Loyens & Loeff N.V.

                      40299577
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
1. Merger control
          2. Cartels
          3. Abuse of dominance
          4. Trends & preview 2020
          5. Your trusted advisors

CONTENT
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
The Loyens & Loeff EU Competition Team in 2019

  We are pleased to present to you this overview of competition law
  developments in the Netherlands in 2019. With Martijn Snoep, eminent
  competition lawyer, in office as chairman of the Dutch Authority for Consumers
  & Markets (the ACM) for over a year now, it would appear that the ACM has
  embarked on a more interventionist policy course.

  Multiple dawn raids were carried out, no fewer than five merger control cases
  were referred to the second phase for an in-depth investigation and the ACM
  published several noteworthy reports and policy guidelines. Especially the
  healthcare sector, digital markets and the food sector - areas in which our team
  has a strong focus and track record – have been at the centre of the ACM’s
  attention.

  This resulted in another busy year for Loyens & Loeff’s EU Competition Team.
  We were involved in several concentrations, court proceedings and cartel and
  abuse of dominance investigations. For example:

  •   We represented clients in two Phase II merger cases, one of which is still
      pending. We successfully advised textile services provider CleanLease and
      its majority shareholder AAC on the acquisition of its competitor Lips, uniting
      numbers 1 and 2 in the market.

  •   In the digital sector, we advised and represented various online platforms
      and retailers, big tech companies and data driven companies.

  •   2019 also marked the year in which we published the first comparative
      handbook in relation to EU digital competition law. We also launched our
      own Digital Competition Course.

  In 2020 we will continue to follow developments in these and other sectors in
  order to assist our clients on competition law matters in an increasingly
  complex digital landscape.

  Please do not hesitate to contact us should you have any questions. We will be
  happy to discuss.

                                                                                        Loyens & Loeff - Amsterdam, December 2020   3
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
The Loyens & Loeff EU Competition Team in 2019 - Digital Competition

                                           Book launch at the annual IBA Conference in Seoul
                                           In 2019, we published the first comparative handbook in relation to EU digital
                                           competition (“Digital Competition Law in Europe: A Concise Guide”). This
                                           book provides a concise and comprehensive coverage of enforcement
                                           practices and policies in the field of digital competition law of six European
                                           competition authorities. The book was launched at the annual IBA Conference
                                           in Seoul.

                                           Digital Competition Course
                                           In collaboration with Oxera Economics and Leiden University, we organised a
                                           Digital Competition Course focusing on pricing, market power and the role of
                                           data in digital markets, combined with a network event. This course was
                                           attended by clients and prospects and was appreciated very highly by the
                                           various participants.

                                           Competition & Cocktails client event
                                           In September 2019, we organised our annual Competition & Cocktails client
                                           event, this year themed “The Future of Competition”. In addition to
                                           presentations of our digital competition experts, Dr T. Schrepel of Harvard and
                                           Utrecht Universities gave his view on how competition law applies to
                                           blockchain. Please contact us should you wish to attend our event in 2020.

                                                                                         Loyens & Loeff - Amsterdam, December 2020   4
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
1. Merger control
  A. Facts and Figures
  B. Noteworthy Cases
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
A. Merger Control – Facts & Figures

  Numbers:

  Up to 8 December 2019, the ACM has taken the following decisions in merger        116
  cases:
                                                                                    114
    1st   phase decisions
                                                                                    112
           Short decisions                              105                                           113
           Full decisions                               6                           110
           Permit required                              5                                                                   111
           Exemptions from standstill obligation        3                           108
           Remedies required                            0
                                                                                    106
    2nd   phase clearance decisions (1 with remedies)   2
                                                                                    104
                                                                                                                                                  105
    Referral to the European Commission                 0                           102

                                                                                                    Cleared                Phase 1              Short form
    Prohibition decisions                               1 (eventually permitted                  concentrations
                                                        through ministerial
                                                        approval)                 Highlights:
                                                                                  Page 6: For the first time in history, the Dutch government – instead of the ACM –
                                                                                  cleared a concentration in the “third phase” (PostNL/Sandd).

                                                                                  Page 7: The ACM cleared two concentrations in Phase II.

                                                                                  Page 8: The ACM allowed three derogations from the standstill obligation that
                                                                                  normally applies during its merger control review.

                                                                                  Page 8: The Dutch Healthcare Authority (the NZa) – which assesses certain
                                                                                  healthcare concentrations – revoked a clearance decision as the parties misinformed
                                                                                  the authority and healthcare insurers.

                                                                                  Beware! The ACM increasingly requests strategic internal documents to understand
                                                                                  the rationale behind a concentration and its possible anti-competitive effects.

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Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
B. Merger Control – Noteworthy cases

  Dutch government approves PostNL/Sandd
  in “third phase”

  • In brief: Following a Phase II investigation, the ACM prohibited the acquisition
    of Sandd by PostNL, which would create a near-monopolist in the Dutch postal
    market. Following this prohibition decision, for the first time in history the Dutch
    government cleared the concentration in the ministerial review procedure
    (phase III).

  • The transaction: The transaction concerned the acquisition of Sandd by
    PostNL. PostNL is the largest postal operator in the Netherlands. Sandd is,
    in practice, PostNL’s largest and only sizeable competitor in the Dutch market.

  • Phase I: The ACM had concerns about the position of the merged entity on the
    market for business mail. PostNL would be a near-monopolist after the
    acquisition as PostNL and Sandd are the only two national operators on this
    market. This could allow the merged entity to increase its prices on this market
    and/or reduce the quality of its services. Hence, the ACM decided that a Phase
    II investigation was required.

  • Phase II: The ACM decided not to grant a permit to allow the concentration, as
    its projections indicated that, without Sandd exercising competitive pressure,
    PostNL could increase its prices for business mail by 30 to 40 per cent after the
    acquisition. In addition, the ACM expected that the acquisition would lead to
    higher prices for consumer mail. Since the parties maintained that the
    acquisition was necessary for maintaining a postal service that is efficient and
    viable, the ACM also considered that any such benefits of the acquisition could
    not offset the negative consequences of the elimination of competition between
    PostNL and Sandd.

  • Phase III: in September 2019, The Dutch Deputy Minister of Economic Affairs
    and Climate Policy nevertheless granted – for the first time in history – a permit
    for the concentration on the basis of reasons of general public interest. This
    procedure was based on Article 47 of the Dutch Competition Act. The Deputy
    Minister attached a number of conditions to the clearance. For example, the
    merged entity's pricing should be based on actual costs.

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Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
B. Merger Control – Noteworthy cases

                 Phase II clearance: Sanoma / Iddink                                        Phase II clearance: Active Capital / LipsPlus

    In short: Sanoma had notified its intention to acquire sole control of Iddink.   In short: Active Capital Company B.V. (ACC), a PE investor that had already
    Sanoma publishes educational materials, while Iddink distributes these. One      acquired CleanLease, the largest laundry service for linen and workwear for
    of Iddink’s most successful products is Magister, one of the most-used Dutch     Dutch hospitals, wished to acquire LipsPlus, a laundry services company that
    learning management systems (LMS) which provides access to digital               focuses on the supply and maintenance of flat linen in the healthcare sector.
    educational content.                                                             Loyens & Loeff represented ACC and CleanLease in the merger
                                                                                     proceedings.
    Phase I: The ACM’s investigation revealed that more than half of all
    secondary schools in the Netherlands use Magister. The ACM assessed              Phase I: The ACM decided on 4 June 2019 that a permit was required for
    whether post-closing would have resulted in other providers of digital           clearance due to the fact that the ACM could not rule out possible competition
    educational having fewer opportunities to offer their educational materials to   concerns on the basis of a narrow product market for the delivery of laundry
    students.                                                                        services to hospitals only.

    Phase II: The ACM eventually cleared the transaction subject to conditions.      Phase II: In Phase II, the parties put forward various arguments, including
    These conditions must ensure that a level playing field between publishers       a comprehensive bidding analysis indicating that there remained sufficient
    (i.e. Sanoma vis-à-vis its competitors) continues to exist. In particular,       competition as well as proof of strong countervailing buying power,
    Sanoma’s competitors must (a) be granted equal access to Magister as             convincing the ACM to clear the transaction on 29 August 2019 without
    Sanoma and (b) receive the same Magister data (which publishers may need         imposing any conditions.
    in order to improve their services) as Sanoma.

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Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
B. Merger Control – Noteworthy cases

  ACM allowed three exemptions from the standstill
  obligation

  •   In brief: The parties to a concentration are prohibited from implementing all or
      part of the notified transaction until the ACM’s clearance has been obtained. A
      violation of this requirement may result in high fines and it appears that
      competition authorities increasingly pay attention to violations of this standstill
      obligation (often referred to as ‘gun-jumping’). However, at the request of the
      notifying party, the ACM may, on important grounds, grant an exemption from
      this obligation. Although such exemptions are rare, the ACM granted no fewer
      than three of such exemptions in 2019.
  •   St. Jansdal / IJsselmeerziekenhuis Lelystad
  •   Mirage Toys Group B.V. / Green Swan Logistics B.V. (Intertoys)
  •   Sensire / Trimenzo
       Loyens & Loeff represented Sensire in this matter.

  The NZa revoked a clearance decision as the parties had
  misinformed the authority and healthcare insurers

  •   Healthcare specific merger control regime: Concentrations in the healthcare
      sector also require the prior approval of the NZa under the so-called
      “healthcare specific concentration assessment”. Under this regime, the NZa
      assesses, inter alia, the financial impact of the concentration on the provision
      of healthcare and considers whether internal and external stakeholders have
      been properly informed and involved in the merger process.

  •   Clearance revoked in Erasmus MC / IJsselland: Following an appeal by a
      healthcare insurer, the NZa revoked a clearance decision as the parties stated
      to the NZa that healthcare insurers had been properly informed. This was not
      the case, since healthcare insurers were told that the parties only wished to
      cooperate while in fact the transaction amounted to an acquisition of control
      over IJsselland by Erasmus MC.

                                                                                            Loyens & Loeff - Amsterdam, December 2020   9
Competition law in the Netherlands 2019 - An annual overview by Loyens & Loeff N.V - Loyens & Loeff
2. Cartels
  A. Main Developments
  B. Court Appeals Regarding ACM Decisions
  C. Follow-on Damages Claims
A. Main Developments - Cartels and Antitrust (1)

  Facts 2019                                                                         Pending Cartel Investigations (publicly known)
  • No publicly known fining decisions for substantive infringements of the cartel   Civil engineering
    prohibition (situation 31 December 2019)                                         In May 2019, the ACM launched an investigation into irregularities in tender
  • One fine for a failure to cooperate (see page 10)                                proceedings in the civil engineering sector in the municipality of Amsterdam. The ACM
  • One investigation continued which started at the end of 2018                     announced that it had received tip-offs suggesting that, in a number of tenders that the
  • Two new investigations announced                                                 municipality had organised, illegal agreements had been made between several
                                                                                     building contractors about prices, and about who should be awarded the contracts.
  • Four enforcement requests to the ACM were made public, all of which have
                                                                                     The tenders were organised for projects ranging between EUR 100,000 and 2 million.
    been denied
                                                                                     The ACM conducted dawn raids at several companies. The ACM is still in the process
  • ACM published several Guidelines concerning cooperation between                  of assessing whether the cartel prohibition has indeed been infringed (situation
    businesses and price-fixing among independent contractors                        31 December 2019).

  Enforcement Decisions                                                              Price-fixing between consumer goods manufacturers and retailers
  ACM Decision 20 June 2019, Ryanair                                                 On 27 December 2018, the ACM announced an investigation into price-fixing
  • Ryanair submitted an enforcement request to the ACM against KLM and              agreements between consumer goods manufacturers and retailers (including online
    Schiphol, as it contended that these companies infringed the Competition         retailers). The ACM suspected that some consumer goods manufacturers are trying to
    Act. According to Ryanair, KLM and Schiphol would have made agreements           conclude minimum resale price agreements with retailers for their products. As part of
    about flight capacity and its distribution at Schiphol airport. These            this investigation, the ACM conducted dawn raids at various firms. No enforcement
    agreements allegedly were aimed at protecting KLM's leading position.            decision has yet been taken (situation 31 December 2019).
  • The ACM carried out an initial investigation into the alleged violations. This
    initial investigation did not reveal any indications of anti-competitive         Dawn raids in the agricultural sector
    behavior on the part of KLM and Schiphol. The ACM therefore rejected the         On 18 November 2018, the ACM announced that it had conducted dawn raids at
    enforcement request.                                                             several large traders in the agricultural sector. The ACM suspects that they have
  • Contrary to what Ryanair suggests, there were no indications that the            made illegal arrangements about the purchase price that they pay to farmers.
    applicable ceiling of 500,000 flight movements would have been bilaterally       The ACM suspects that the traders have coordinated the purchase prices amongst
    coordinated between KLM and Schiphol. Nor were there any indications that        themselves. The ACM believes that this type of behaviour may result in farmers being
    this ceiling would have been established on the initiative of these two          harmed because they are being paid a lower price for their products. The ACM
    companies.                                                                       expects to present the results of its investigation ‘in the coming months’ (situation
                                                                                     31 December 2019).

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A. Main Developments - Cartels and Antitrust (2)

  New Guidelines                                                                        The ACM imposes a fine of EUR 1.84 million for deleting
  Guidelines regarding price-fixing among independent contractors                       WhatsApp conversations during a dawn raid
  •   Independent contractors are allowed to make collective arrangements about
      rates in order to earn a minimum income. This has been laid down in the
      ‘Guidelines regarding price-fixing among independent contractors’.                •   On 11 December 2019, the ACM announced that it had imposed a fine on a
      Independent contractors who work side by side with one or more employees              company for obstructing an investigation. During a dawn raid, employees of the
      and who, in day-to-day operations, are indistinguishable from those employees         company under investigation left several WhatsApp groups and deleted chat
      are not considered ‘undertakings’ within the meaning of the Dutch Competition         conversations on WhatsApp. The ACM believes that these chats could have
      Act. In such cases, the cartel prohibition does not apply to that independent         contained evidence relating to the investigation.
      contractor.
                                                                                        •   According to the ACM, the company in question had acknowledged that some
                                                                                            of its employees had indeed wrongfully left several WhatsApp groups and
  Guidelines regarding cooperation between businesses
                                                                                            deleted chat conversations. The company has fully cooperated with the
  •   In February 2019, the ACM published Guidelines for cooperation between
                                                                                            investigation into the deleted materials to an extent that goes beyond what is
      competitors and for arrangements between suppliers and buyers. In these               prescribed by law. That is why ACM has reduced the fine by 20 per cent,
      Guidelines, the ACM explains how the Dutch Competition Act applies to                 leaving a fine of EUR 1.84 million.
      various types of common arrangements between competitors and between
      suppliers and buyers. These Guidelines are aimed primarily at undertakings,
      trade organisations, and their advisors. The guideline on arrangements
      between suppliers and buyers illustrates the ACM’s increased interest in the
      effects of vertical agreements.

  Investigation into big tech and payments
  On 22 October 2019, the ACM announced that at the request of the Dutch Minister
  of Finance, it had initiated a market study into the activities of major tech firms
  (referred to as Big Techs by the ACM) on the Dutch payments market. As
  examples of Big Techs, the ACM explicitly mentions Apple, Google, Amazon, and
  Facebook (also commonly referred to as ‘GAFA’). In its market study, the ACM
  intends also to examine whether Chinese Big Techs (such as Tencent and
  Alibaba) may enter the Dutch payments market. The ACM aims to announce the
  initial results of the study by mid-2020.

                                                                                                                                    Loyens & Loeff - Amsterdam, December 2020   12
B. Court cases

  Trade and Industry Appeals Court (CBb)

  Flour cartel
  • In 2010, the ACM imposed fines on 14 flour producers for entering into
    prohibited cartel agreements. On 26 January 2017, the Rotterdam District Court
    ruled that the ACM had rightly fined one of the investment companies for the
    infringement perpetrated by its former portfolio company. The private equity
    investment firm appealed against this decision to the CBb.

  • In May 2019, the CBb confirmed the Court's ruling: the ACM had rightly
    imposed a fine on the investment firm for participation in the flour cartel by the
    company in which it held a controlling interest. The CBb concluded that the
    investment firm exercised decisive influence over the company that participated
    in the flour cartel during a part of the infringement period. The CBb ruled that
    during that period, the investment firm and the subsidiary company could be
    regarded as a single economic entity within the meaning of competition law.
    The infringement of the subsidiary company could therefore be attributed to the
    investment firm.

  Compensation of damages after revocation of fining decisions
  • In September 2019, the CBb decided that the ACM must pay damages of EUR
    40,000 each to three real estate auction traders.

  • The ACM had previously imposed high fines on traders for allegedly being
    involved in an infringement of the cartel prohibition in trade on foreclosure
    auctions of homes. The CBb had already ruled in July 2017 that the ACM had
    not provided sufficient evidence for this infringement and therefore annulled the
    fines.

  • The traders requested the CBb to compensate them for the damages they had
    suffered. The CBb ruled that most of the alleged damages did not qualify for
    compensation. However, the dealers were entitled to compensation for
    reputational damage because of the media coverage of the case and the long
    duration of the proceedings.

                                                                                         Loyens & Loeff - Amsterdam, December 2020   13
C. Follow-on Damages Claims - District Court of Amsterdam

  Air cargo                                                                                Truck cartel

  St. Cartel Compensation (SCC) / KLM ea. Equilib Netherlands BV / KLM ea.                 St. Trucks Cartel Compensation ea. / Daf Trucks ea.
  • This judgment related to the Air Cargo case (COMP/39.258)                              • This judgment related to the Trucks case (COMP/39824)
  • May 2019: the Court ruled in two judgments that Dutch law applies to all               • May 2019: the Court ruled that the claimants had insufficiently substantiated
     follow-on damages claims resulting from the international air cargo cartel.               their claims. The claimants were given until 18 September 2019 to provide
     The Court had to decide which legal system (or systems) would govern the                  sufficient evidence regarding transactions that were allegedly affected by the
     civil-law damages claims of the indirect purchasers.                                      cartel.
  • Since the anti-competitive conduct had occurred before the Rome II Regulation          • The Court emphasised that the bundling of claims does not remove their
     entered into force in January 2009, this question had to be adjudicated under             individual character.
     the Dutch private international law rule which provides that claims arising from      • The Court consequently held that claimants should have provided sufficient
     an infringement of competition law are "governed by the law of the state where            facts to determine whether or not a purchaser, lessee and/or user was affected
     the competitive act affected the competitive relationships".                              by the cartel to allow the Court to determine whether or not the possibility of
  • Thus, the principal question with regard to every individual claimant's claim was          harm is plausible. The Court noted that – in the absence of this information –
     in which state the air freight cartel had allegedly produced anti-competitive             the defendants could simply contest the allegations made by the claimants.
     effects. Due to the worldwide impact of the air cargo cartel, it would be difficult       That would make the proceedings ineffective, since the Court would then have
     and impracticable to precisely identify the affected markets. Therefore,                  no choice but to reject the claims.
     the Court decided to adopt a more practical approach. In doing so, it ruled           • The Court did not decide whether the European Commission’s statement of
     that since the cartel had a worldwide impact, including in the Netherlands,               objections would have to be disclosed, as demanded by one of the claimants.
     Dutch law could be, and in fact had to be, applied to all individual claims.              The Court indicated that it will decide on this question later, as part of the
     The court justified this approach with reference to the principles of due                 proceedings on the merits of the claims. The Court also decided to formally join
     process ("goede procesorde") and the European law principle of effectiveness.             all pending Dutch trucks cartel follow-on proceedings (currently more than ten)
                                                                                               before the Amsterdam District Court.

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3. Abuse of dominance
Notable cases

   Apple App Store                                        Dutch Railways Fine                                       ACP accepts commitmenst offered by OMS
   In April 2019, the ACM announced that it had           On 27 June 2019, the District Court of Rotterdam          On 2 December 2019, the ACM announced that it
   launched an investigation into the question            ruled in the case concerning the fine imposed by the      had accepted commitments offered by OMS – the
   whether Apple abuses its dominant position             ACM on the Dutch Railways (Nederlandse                    largest provider of radio advertising space – in
   through its App Store. The ACM started the             Spoorwegen; ‘NS’) and annulled the fine of over EUR       order to close an investigation into an alleged
   investigation following signals it had received from   40 million that the ACM had imposed on NS.                abuse of a dominant position by OMS.
   other app providers during its earlier general         In 2017, the ACM ruled that NS had abused its             In its commitment decision, the ACM does not
   market study into app stores.                          dominant economic position as a monopolist on the         conclude whether or not there actually has been
   The aforementioned market study revealed that          main rail network in the Netherlands in the tender        an abuse of dominance. The decision notes,
   app providers depend on app stores in order to         process for a regional public transport contract in the   however, that OMS is the largest provider of radio
   reach users. For numerous apps, no realistic           province of Limburg, by submitting a bid below cost       advertising space and that OMS had a rebate
   alternatives to Apple’s App Store and Google’s         and withholding information from rivals on railway        scheme in place, in which the discount granted to
   Play Store exist. That provides, at least in theory,   station infrastructures. This information was of          a customer was dependent upon the percentage
   Apple and Google with the opportunity of setting       importance for the tender. For this conduct, the ACM      of its overall advertising budget that was spent
   unfair conditions. The conflicting interests of        had imposed a fine of 40,950,000 euro on NS in            with OMS. The higher the share of the overall
   Apple and Google, as they are also app providers       2017.                                                     budget that was spent with OMS, the higher the
   themselves, may pose antitrust problems.               NS appealed against this decision. The Rotterdam          discount.
   According to other app providers, they do not          District Court subsequently annulled the fine. The        As a result, customers would be tempted to spend
   always have a fair chance against Apple’s own          Court established that the ACM had not proved that        an even larger part of their budget with OMS,
   apps or against apps that Google has pre-              NS has a dominant position on the main rail network,      entailing the risk that other radio stations not
   installed on phones. In addition, providers of         since it had not investigated the conditions and          represented by OMS would not receive enough
   digital products and services are required to use      obligations attached to NS’ concession for operating      advertising revenues in order to remain active. In
   Apple’s and Google’s payment systems for in-app        the main rail network. Therefore, the Court did not       the decision, the ACM accepted a commitment by
   purchases, and they are also required to pay 30%       investigate whether NS had abused that allegedly          OMS that it would no longer use such rebate
   commission in the first year.                          dominant position in the tender process for the           schemes.
   Furthermore, they are not always able to use all       regional public transport contract. The ACM has
   the functionalities of an iPhone.                      announced that it has filed an appeal against the
                                                          Court’s judgment.

                                                                                                                               Loyens & Loeff - Amsterdam, December 2020   16
4. Trends
   & preview 2020
Trends in Dutch competition law

     The ACM rolls out its digital agenda

     •   In the previous edition of this booklet, we highlighted the ACM’s particular
         interest in the digital sector.
     •   Whereas throughout 2018 the ACM’s interest was mostly shown through
         market studies, in 2019 the ACM demonstrated it is now ready to enforce.
         The investigation into Apple’s App Store and the dawn raids in the retail
         sector (see sections on abuse of dominance and cartels, respectively) are
         witness of the ACM’s readiness to enforce.
     •   The ACM also calls for new enforcement tools in order to be able to act
         promptly and effectively vis-à-vis digital platforms and other ‘big techs’,
         even before they engage in anti-competitive behaviour (in particular the
         abuse of a dominant position). The ACM has emphasised its view that
         such instruments are necessary in a report dated 6 August 2019, and
         again in a joint publication with the competition authorities of Belgium and
         Luxembourg dated 2 October 2019.

                                     New ACM chairman gets up to speed

                                     The new chairman of the ACM, Martijn Snoep took office on 1 September 2018 

                                     • With Mr Snoep having now been in office for more than a year, it has become clear that the ACM has become more
                                       interventionist under his presidency.
                                     • New cartel and dominance investigations have been initiated (see relevant sections).
                                     • No fewer than five merger cases were referred to phase II in 2019.
                                     • Vertical agreements are back on the ACM’s enforcement agenda (evidenced by both the aforementioned dawn raids and the
                                       new policy rules).

  Martijn Snoep

                                                                                                                             Loyens & Loeff - Amsterdam, December 2020   18
What 2020 may bring…

  •   Closer scrutiny in merger cases is likely to
      continue

  •   Tech will remain one of the spearheads of
      the ACM’s enforcement agenda, with the
      investigation into Apple’s App Store being a
      potential landmark case to look out for in 2020

  •   Vertical agreements will be more prominently
      on the ACM’s agenda

  •   The ACM is expected to publish its enforcement
      agenda for 2020 and 2021; the digital economy
      and the energy transition have already been
      announced as key priorities on this agenda

  •   It seems highly likely that the ACM will again
      impose potentially high fines for substantive
      infringements in 2020 for the first time since 2017

  •   …and Loyens & Loeff looks forward to a
      continued fruitful cooperation with you!

                                                            Loyens & Loeff - Amsterdam, December 2020   19
5. Your trusted
   advisors
Your trusted advisors - Contact

Gert-Wim van de Meent          Marc Wiggers                      Marc Custers
Attorney at law                Attorney at law                   Attorney at law
Partner                        Partner                           Counsel
T +31 20 578 59 66             T +31 20 578 56 14                T +31 20 578 55 22
M +31 6 51 56 27 61            M +31 6 51 10 27 75               M +31 6 20 60 46 05
E gw.vdmeent@loyensloeff.com   E marc.wiggerst@loyensloeff.com   E marc.custers@loyensloeff.com

                                                                                                  Loyens & Loeff - Amsterdam, December 2020   21
Your trusted advisors - CV’s

                         Gert-Wim van de Meent                                                              Marc Wiggers

Attorney at law                                                                   Attorney at law
Partner                                                                           Partner

Gert-Wim van de Meent specialises in EU law, competition law (merger control,     Marc gives advice on the application of competition rules (cartel prohibition,
antitrust and state aid), procurement law and healthcare law. His main focus is   ban on abuse of dominance, prohibition on state aid and merger control) and
on regulated sectors such as food, healthcare & life sciences. He is currently    has broad experience litigating in this area, for instance in cartel and damages
heading the integrate legal/tax Food & Beverages team. Gert-Wim was a             proceedings.
member of Loyens & Loeff’s Executive Board between 2016 and 2018.
                                                                                  He is a member of the Loyens & Loeff Competition Litigation Team and the
Gert-Wim is professor of European and national procurement law at the             Corporate Investigations Team. He focuses on regulated sectors such as tech,
University of Amsterdam and regularly publishes in academic literature.           life sciences, pharma and the financial sector.

                                                                                  Marc is senior lecturer at the Grotius Academy where he teaches postgraduate
                                                                                  courses in healthcare and competition law. He also teaches at universities on a
                                                                                  regular basis. He gives lectures and publishes frequently in professional
                                                                                  journals on issues relating to competition, tech and healthcare law.

T: +31 20 578 59 66                                                               T:   +31 20 578 56 14

M: +31 651 56 27 61                                                               M:   +31 6 5110 2775

E: gw.vdmeent@loyensloeff.com                                                     E:   marc.wiggers@loyensloeff.com

                                                                                                                      Loyens & Loeff - Amsterdam, December 2020   22
Your trusted advisors - Contact

                         Marc Custers

Attorney at law
Counsel

Marc specialises in EU law and competition law (merger control, anti-trust and
state aid). He has broad experience in proceedings before the European and
Dutch courts, the European Commission and the Dutch Competition Authority.
He has also assisted clients in complex cartel damages proceedings and has
been involved in various important state aid matters. Marc is editor of the
Tijdschrift voor Staatssteun (a State aid journal).

Marc is a member of the Loyens & Loeff Competition Litigation Team. He also
is a member of the Netherlands Association for European Law and the
Netherlands Association for Competition Law. He has published various articles
on competition law and is a regular speaker at conferences.

T: +31 20 578 55 22

M: +31 620 60 46 05

E: marc.custers@loyensloeff.com

                                                                                 Loyens & Loeff - Amsterdam, December 2020   23
EU Competition Team

       We wish you
         all the best for 2020

                                 Loyens & Loeff - Amsterdam, December 2020   24
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