Competition law and state aid
Competition law seeks to ensure effective competition between businesses. In principle, any conduct on the part of enterprises or business associations which significantly impairs competition is therefore prohibited (the cartel prohibition). Any business which holds a dominant economic position within its market is prohibited from abusing its position of power to the detriment of its competitors and/or consumers.
Support in all areas of competition law
The Dutch Authority for Consumers and Markets (ACM) oversees compliance with competition law in the Netherlands. The European Commission monitors anti-competitive behaviour which may adversely affect trade between EU member states. The regulatory authorities have the power to impose substantial penalties for any breach of competition law.
Dirkzwager is familiar with the operations of both the regulatory authorities and the corporate sector. Our specialists provide advice on all aspects of competition law and help companies to ensure that they comply with both Dutch and European competition law.
Competition and collaboration
Collaboration between enterprises can yield significant benefits, including cost savings and the pooling of expertise and resources. It is essential to structure collaboration in such a way that it does not have the aim of unduly restricting competition or the effect of doing so.
Mergers and acquisitions, fully-fledged joint ventures and certain far-reaching collaboration agreements must therefore be reported in advance to the European Commission, the Netherlands Authority for Consumers and Markets (ACM), and/or the Dutch Healthcare Authority (NZa), if specific (turnover) thresholds may be exceeded. In principle, other forms of collaboration are subject to the cartel prohibition.
Dirkzwager’s competition law advisers are experts in the field of commercial collaboration. They have extensive experience in overseeing reporting procedures and establishing permissible forms of collaboration between businesses.
Digital Markets Act
The Digital Markets Act (DMA) came into effect on 1 November 2022. This legislation imposes specific obligations on designated digital platform gatekeepers, including providers of online social networking services and search engines. They must comply with regulations that prevent data from being pooled and their own services from being preferenced. In addition, the DMA makes it mandatory for such gatekeepers to ensure transparency in relation to their users and to facilitate interoperability. This entails that various systems must be interoperable and permit data exchange.
Gatekeepers must demonstrate to the Commission that they comply with their obligations. Businesses that are prejudiced by such gatekeepers may lodge a complaint with the Commission and/or institute legal proceedings for damages under civil law.
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State aid
Governments and public enterprises must comply with state aid rules if they intend to provide financial support to companies. Any business which receives public assistance may derive a competitive advantage over its competitors as a result. State aid law has a broad remit. It covers both the (indirect) provision of financial assistance and the reduction of certain business expenses.
A government is only permitted to provide state aid after it has notified the European Commission of their intention to do so and the latter has approved the measure. Any state aid that has been unlawfully granted must be recovered from the recipient.
State aid legal framework and advice
Numerous support measures may benefit from block exemptions from or other exceptions to reporting obligations. Examples of this include the General Block Exemption Regulation (GBER) and the exemption decision in the case of Services of General Economic Interest (SGEI). It is possible to avoid state aid in certain situations. In addition, the lawful provision of, or a challenge to the unlawful provision of state aid may be relevant in the case of public or semi-public authorities or businesses.
Market and Government Act
If public authorities intend to market products or services, they are obliged to comply with the regulations laid down in the Market and Government Act [Wet markt en overheid]. To avoid the emergence of an uneven playing field between public authorities and businesses, it is incumbent upon those authorities to comply with the codes of conduct applicable in the following four cases:
- the comprehensive oncharging of expenses;
- the prohibition of preferential treatment;
- data usage;
- the separation principle.
Dirkzwager has a proven track record of successfully advising and legally defending public authorities, also in relation to the Market and Government Act.
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