- The outside scrutiny factor. Despite policy changes and possible investigations into anticompetitive behaviour in e-commerce or best price clauses by ACM, enforcement by a competition authority in one country (e.g. Germany) can have consequences for the (e-commerce) policy that a company employs in the Netherlands. Nespresso, for instance, albeit in a different context (a complaint about abuse of market power submitted by DE Master Blenders in France), adjusted their policy in several Member States, including the Netherlands, after giving undertakings to the French competition authority. This demonstrates how enforcement by a competition authority in one Member State can lead to changes to the commercial policy in other Member States.
- As apparent, for example, from the case before the Preliminary Relief Judge between Tronios/Detronics and from the case between Voorne Koi/Oase, companies in the Netherlands do not shy away from legal proceedings when it comes to restraints in vertical agreements. That process can also be affected by developments in other European countries. Partly as a result of earlier enforcement by the competition authorities, case law has now emerged in other Member States that may accelerate this process. According to the President of the Bundeskartellamt, the decision of the Düsseldorf Higher Regional Court in which it rejected an appeal regarding best price clauses against the enforcement by the Bundeskartellamt, can serve as a precedent for other European judges: "The decision of the Düsseldorf Higher Regional Court is the first of a national court which can serve as an orientation for the proceedings currently conducted by our European colleagues."
In sum, it is advisable for producers and wholesalers, particularly if they operate in several Member States, to check whether the agreements with their distributors contain potentially anti-competitive clauses. Clear internal guidelines and frequent practical training of the commercial department(s) can prevent high (personal) fines.