The Netherlands Authority for Consumers & Markets (ACM) has made it easier for self-employed persons to make price arrangements. Self-employed persons who work side-by-side with employees are not “business owners” with regard to that work within the meaning of the Mededingingswet (Competition Act). Until the statutory minimum price for self-employed persons is introduced, ACM will not impose fines on self-employed persons who make arrangements now already to achieve that minimum price.
Most self-employed persons are business owners. All self-employed person independently determine their products, prices and services. In principle, the competition rules therefore also apply to self-employed persons. There are situations, however, in which the competition rules do not apply or in which ACM does not impose fines. ACM has therefore drawn up the Guidelines on Price Arrangements among Self-Employed Persons, which explain when that is the case.
The competition rules do not apply to arrangements with or among self-employed persons who are not business owners. Self-employed persons who de facto work side-by-side with employees are not business owners in respect of those activities within the meaning of the Competition Act. Self-employed persons may therefore collectively negotiate and make arrangements with their customers. That is in keeping with European and Dutch case law.
The cartel prohibition also does not apply to arrangements of minor importance, known as the de minimis exemption, recorded in Article 7 of the Competition Act. This exemption applies to two situations, namely (i) arrangements within groups of no more than eight self-employed persons with a joint total turnover not exceeding EUR 1.1 million; and (ii) arrangements among self-employed persons with a joint market share not exceeding 10%.
Another exception applies to arrangements that, although they restrict competition, on balance contribute to consumer welfare. Several conditions must then be met. The arrangement must improve the social protection of self-employed persons and may not go beyond what is necessary for that purpose. The customers of self-employed persons must also benefit from the arrangement, for instance because it safeguards the quality of the service.
ACM also clarifies in the Guidelines how it will supervise the arrangements among self-employed persons and collective agreements with customers. ACM will not impose fines for minimum price arrangements among self-employed persons insofar as they do not exceed the statutory minimum price announced by the government. ACM will also not impose fines if collective arrangements are made with customers on a price that exceeds the proposed statutory minimum price and that the customers accept.
In 2019, Leah Peeters, a paralegal at Maverick Advocaten, wrote her thesis on the protection of self-employed persons under competition law. She was awarded the prize for the best graduation thesis in the Netherlands in the field of European and national competition law at the Annual Conference on Developments in Competition Law. The entire thesis can be read here.