On 27 March 2025, the Amsterdam Office of Geradin Partners hosted a webinar on the developments within competition law in the Netherlands. During the webinar, Ruben Elkerbout, Mattijs Baneke and Philine Wassenaar discussed developments in public enforcement, merger control and private enforcement in the Netherlands in 2024, as well as the outlook and fresh predictions for the coming year(s). This blog will briefly summarise the webinar for all those who did not get a chance to tune in.
Public Enforcement
2024 was a relatively slow year for traditional public enforcement in the Netherlands. The ACM issued two fines for anti-competitive agreements in 2024 (one of which concerned a decision on appeal) and none for abuse of dominance. Additionally, it accepted commitments in two cases.
- Traditional antitrust enforcement is fairly limited
Regarding anti-competitive agreements, the ACM fined a construction contractor €59,000 for cover-pricing in Tender Procedure Yuverta Roermond. Additionally, the ACM upheld its 2023 decision by which it fined electronics manufacturer LG €8 million for enforcing minimum retail prices for online television sales. LG had pressured retailers to raise their prices to align with recommended prices, monitoring compliance via online pricing tools and reports from other retailers. On administrative appeal, the ACM reaffirmed that this constituted a by-object restriction and upheld the fine in full.
With regard to abuse of dominance cases, although no new fines were issued, the ACM did conclude its investigation of Ticketmaster. The ACM had been looking into restrictions of the compatibility of the ‘transfer functionality’, which allows customers to re-sell tickets purchased via Ticketmaster, with third-party resale platforms since 2023. Ticketmaster ended up offering commitments requiring it to, inter alia, allow users to resell tickets on third-party platforms and change its communications with users who purchase tickets through third-party platforms. The ACM accepted the commitments and declared them binding in December 2024.
- The ACM has become increasingly creative in its enforcement
Amid a seemingly slow year for traditional enforcement, the ACM adopted notably creative approaches to addressing competition concerns. Rather than imposing fines, the ACM frequently chose to issue warnings, particularly in resale price maintenance (RPM) cases. For example, in February 2025, suppliers across various sectors received warnings about influencing resale prices, with nine dog food suppliers receiving similar notices in April. This warning-based strategy prompted internal investigations and compliance training on the side of the companies involved, focusing on resolving non-compliance rather than punishment.
The ACM’s solutions-oriented approach extended to accepting commitments for other serious conduct. A particularly striking example involved anti-competitive agreements in the chiropractor sector, where professional organizations had implemented rules prohibiting discounts, certain free treatments, and specific advertising. Instead of traditional fines, the ACM accepted commitments to change these rules instead. It is interesting to note that in these cases, where the conduct at hand could very well qualify as a by-object restriction, the ACM nonetheless decides to solve the case through commitments instead of issuing a fine. While commitments are arguably more common in abuse of dominance cases (as with Ticketmaster), they are quite unusual for by-object restrictions in cartel cases.
Sustainability was another focus area in 2024, (as before), with the ACM issuing four informal opinions under its Sustainability Agreements Policy Rule. These opinions help companies to ensure that their sustainability agreements comply with Article 101 TFEU and Article 6 of the Dutch Competition Act.
This constructive attitude coincided with a high enforcement request rejection rate. The ACM rejected three requests, including two parallel complaints regarding PostNL’s exclusivity agreements. Courts generally supported these rejections, with the Rotterdam District Court and the Trade and Industry Appeals Board (College van Beroep voor het bedrijfsleven) upholding ACM rejection decisions. However, in February 2025, the Rotterdam court quashed one rejection for insufficient motivation, ordering further investigation of the complaint.
- Outlook: the New Competition Tool?
The ACM continues to advocate for a New Competition Tool (NCT), championed by Chairman Martijn Snoep, that would grant the ACM powers to conduct market investigations and impose binding measures without the need to establish an infringement – similar to some other national competition authorities. To demonstrate that it needs these additional powers, the ACM cites its investigation of the Dutch savings market, where it found that this was an, “oligopolistic market that is not functioning properly” but lacked powers to impose remedies. Despite this potential legislative gap, the ACM has launched five ambitious sector investigations into veterinarians, educational tools, computer-driven prices, fixed-broadband, and hydrogen markets, all targeted for completion by end-2025. The findings of these investigations will likely be used by the ACM to strengthen its case for the NCT. This push for expanded powers comes at a time where the ACM already faces capacity challenges, while also handling new responsibilities for DMA, DSA, and P2B Regulation enforcement in the Netherlands. This raises questions about how the ACM will balance its growing portfolio of (antitrust) enforcement duties. Our prediction is that we will likely see an increased strain on the ACM’s enforcement resources. Therefore, a continuation of the creative enforcement strategy by the ACM – and a corresponding decline in ‘traditional’ forms of competition enforcement – is likely. Finally, we will likely see more lobbying from the ACM the coming months.
Merger control
Compared to public enforcement, 2024 was an eventful year for merger control in the Netherlands, with the ACM pursuing novel theories of harm and potentially receiving new powers. The ACM received 152 notifications, cleared 132 transactions in Phase 1, cleared one transaction in Phase 2, and initiated four in-depth investigations under the Dutch Competition Act.
- In-depth investigations: towards new theories of harm
The ACM launched four in-depth merger investigations in 2024: Foresco/DWP and Vierhouten, FinCo Energies/Klaas de Boer Oliehandel, DGP/RTL, and Glaspoort/Delta Fiber. Three of these cases featured rather innovative theories of harm, reflecting the ACM’s increasingly creative enforcement approach.
Most notably, the Foresco/DWP and Vierhouten case marked the first formal application of a new framework for the review of buy-and-build or roll-up strategies. Buy-and-build strategies have played a role in previous prohibition decisions (see Bergman Clinics / Mauritskliniek), but no specific framework existed. In the Foresco/Vierhouten and DWP case, the ACM ultimately unconditionally approved Foresco’s acquisition of two pallet manufacturers, using its new framework for buy-and-build strategies. The ACM determined that buy-and-build strategies can impede competition by (i) creating a dominant position, (ii) strengthening an existing dominant position, or (iii) establishing potential future dominance through either past transactions, of which the effects have yet to materialize, or sufficiently concrete future transactions. This approach raises several legal questions, as the merger review test under the Dutch Competition Act in principle requires the ACM to assess only the effects of the notified transaction, and not potential future ones. While the ACM attempts to resolve this by treating future transactions as contextual to the notified transaction, this interpretation may face challenges (in court) when the ACM eventually prohibits a transaction on these grounds.
In the Glaspoort/Delta Fiber case, the ACM departed from traditional notification threshold approaches. Despite Glaspoort (a joint venture between KPN and APG) being the acquirer of Delta Fiber’s optical networks, the ACM determined that the parent companies KPN and APG were both “undertakings concerned,” making their individual revenues relevant for the notification threshold assessment. The ACM also reconsidered Glaspoort’s status as a full-function joint venture despite previously recognizing it as such. In addition, buy-and-build strategies also play a role in this matter. KPN had taken over seven other optic fibre networks since 2020. Based on this, as well as internal documents and the views of market participants, the ACM concluded that KPN was carrying out a buy-and-build strategy. As KPN already had a market share above 50% on the market for wholesale access, the ACM was concerned that this transaction would potentially create a dominant position or strengthen an existing dominant position, despite the small size of the notified transaction. The ACM is currently investigating this case.
Finally, novel theories of harm were also relevant in DPG / RTL. This case concerns a horizontal merger between media companies. The media sector has become increasingly consolidated in the Netherlands in recent years, with the ACM having prohibited RTL’s attempted acquisition of Talpa, in 2023. In its decision to open an in-depth investigation, the ACM was concerned about horizontal and vertical theories of harm. It also indicated that it would investigate whether the transaction would negatively affect journalists’ employment terms, as the transaction might create or strengthen a dominant position on the market for the purchase of journalistic services. This marks the first time that the ACM has investigated a transaction’s effect on labour markets in a Phase 2 investigation.
- Competence – (Tower)casting the net wide and new call-in powers
ACM is expanding its merger control toolkit by initiating its first investigation under the Towercast doctrine, which allows non-notifiable transactions to be examined as potential abuses of dominance under Article 102 TFEU and arguably also under Article 101 TFEU. The ACM has announced that it would make use of this doctrine to assess Brink’s acquisition of the Dutch activities of Ziemann. Both parties are money transport services providers. The ACM stated that it had initiated this investigation because the money transport service market was already highly concentrated, with Brink’s being the largest player. This investigation aligns with Martijn Snoep’s stated goal of using Towercast to ‘plug the gaps’ in traditional merger control enforcement, similar to the ACM’s previous referrals of non-notifiable transactions to the European Commission under Article 22 EUMR before the Illumina ruling.
The ACM’s enforcement toolkit may be further expanded, since two members of the Dutch parliament introduced a legislative proposal to grant the ACM ‘call-in’ powers for non-notifiable transactions. Under this proposal, the ACM could request information about such transactions, demand notification where possible competition concerns exist, and review transactions under the standard notification procedures of the Dutch Competition Act. For uncompleted transactions, a standard stand-still obligation would apply, while completed transactions could be required to ‘unwind’ the transaction within thirteen weeks if eventually prohibited. As regards the call-in periods, the ACM would have four weeks from announcement or discovery of the transaction, or six months from closing, to send its first information requests. We understand that the Dutch Ministry of Economic Affairs is currently preparing a similar proposal. We expect that a new law based on one of these proposals (or a combination of both) will be adopted in the course of 2026.
These developments follow years of active lobbying by the ACM and mirror trends in other jurisdictions, primarily targeting buy-and-build strategies and killer acquisitions. However, they significantly reduce legal certainty for companies looking to enter into a transaction. Further, this would place additional strain on the ACM’s already limited resources, as it juggles expanded responsibilities across competition and regulatory enforcement.
Private enforcement
- The Netherlands remains a go-to forum for plaintiffs
The Netherlands continues to be a popular EU forum for filing antitrust claims, particularly follow-on claims, which is due to a number of reasons. In particular, Dutch courts are pragmatic and actively manage cases, slicing them up into manageable portions (e.g. jurisdiction, validity of assignment agreements, quantum). The progress of first-generation follow-on claims means that there is an increasingly comprehensive body of case law on procedural issues. This in turn makes it increasingly difficult for defendants to use procedural complaints to slow down cases, which has been a common tactic. Dutch courts also try to apply Dutch law as much as possible, rather than applying multiple sets of national laws, further accelerating proceedings.
- Unresolved issues: jurisdiction and quantum
Despite the popularity of Dutch courts, this jurisdiction is not without its challenges. In particular, evidence seizure and disclosure remain problematic in a legal system without discovery. The commonly used strategy of requesting declaratory judgments before litigating damages in a separate procedure also complicates collective settlements. In addition, jurisdictional questions and damage quantification continue to cause significant delays.
The year 2024 brought noteworthy developments regarding jurisdiction in follow-on claims. In particular, the possibility for both upward liability (parents being liable for subsidiaries) and downward liability (subsidiaries being liable for parents under restricted conditions following the Sumal ruling) within EU law has seemingly created confusion, especially when plaintiffs use Dutch subsidiaries of multinationals as anchor defendants. This confusion has led to multiple preliminary references to the CJEU. In particular, the CJEU is currently still examining two references from Dutch courts regarding the use of Dutch entities as anchor defendants under Article 8 of the Brussels I-bis Regulation (Power Cables and Carton Packaging). Additionally, the Amsterdam District Court requested clarification regarding jurisdiction based on the location of harmful acts in app store cases (See Apple App Store, in which AG Campos Sánchez-Bordona recently issued his opinion). These reference proceedings often lead to other (parallel) cases to be stayed pending the CJEU’s preliminary ruling. A notable exception here is Wolfson Capital v. Google, where a Dutch court for the first time applied the Sumal-criterium to rule that it had jurisdiction to hear claims against Google Netherlands B.V. for the behaviour of its American and Irish parent companies in a follow-on claim for Google Shopping.
- Air Cargo and quantum
Another recurring issue has been the methodology used to calculate damages in follow-on cases. In a ruling from November 2024 in the long-running Dutch Air Cargo cartel litigation, the Amsterdam District Court for the first time established a methodology for calculating indirect damages in follow-on cases. Specifically, the court resolved a dispute regarding damage calculation models for indirect purchasers affected by the Air Cargo cartel. The court endorsed the plaintiffs’ one-step model, that calculates overcharges directly from indirect purchaser transaction data, rather than the defendants’ two-step model that would have first calculated direct purchaser overcharges before determining pass-on rates. Additionally, the court ruled that the plaintiffs’ data would be used for the analysis, further strengthening the position of indirect purchasers in such cases.
- WAMCA
The Netherlands has become an even more attractive forum for antitrust litigation with the introduction of WAMCA (Wet afwikkeling massaschade in collectieve actie), which took effect on 1 January 2020. This legislation established an opt-out class action system for victims located in the Netherlands, significantly enhancing collective redress possibilities. Currently, five antitrust damages claims are pending under the WAMCA. Interestingly, three of those involve standalone abuse of dominance allegations rather than follow-on claims, despite the substantially higher evidentiary burden associated with proving such violations on a standalone basis. Only one case—a follow-on claim related to the ACM’s fines against LG and Samsung for online television resale price maintenance—concerns anti-competitive agreements.
WAMCA is valuable in particular for consumer claims, with all current cases brought at least partially on behalf of consumers. This popularity for consumer actions is logical given that consumers typically lack organization, making traditional claim bundling methods like assignment models cumbersome. Though the WAMCA has only been in force for five years, a few trends are already emerging in WAMCA-based litigation. For instance, procedural issues have caused considerable delays, as the new regime means courts must develop new case law to deal with WAMCA-specific issues. The admissibility stage has been particularly time consuming. Under WAMCA, courts must first rule on the admissibility of the lead plaintiff bringing the claim and the admissibility of the claim itself before addressing the merits. Only one competition case has so far completed this stage (FTV v. AbbVie).
- Commercial disputes – competition law as a sword
Next to damages claims, competition law remains prominent in commercial disputes, particularly those between a suppliers and distributors. For example, Dutch courts ruled on the compliance of a selective distribution system with VBER and Article 101 TFEU in 123inkt v. HP and whether the termination of an agency agreement was anti-competitive in Prijsvrij v. Corendon. However, also here, evidentiary challenges persist as plaintiffs bear the burden of proving both the alleged violation and relevant market circumstances. Here, it is evident that courts favour ‘easy’ cases that involve hardcore and by-object restrictions, as they don’t require economic effects analysis.
Outlook – private enforcement
Looking ahead, the Netherlands will continue to be a popular forum for bringing claims. Given the prominent role of EU law, EU courts will continue to play a decisive role in the development of Dutch private enforcement. As case law develops and courts gain more expertise in addressing competition questions, the pace of cases will likely accelerate.
Abuse of dominance cases will also become more common. This is already the case with WAMCA cases, where almost all competition law cases concern abuses of dominance. While Big Tech companies are already overrepresented among WAMCA-claim defendants, this trend will likely continue, particularly as investigations by the European Commission and NCAs into these markets continue to provide plaintiffs with potential claims and additional evidence. The development of case law will also reduce procedural hurdles, accelerating the pace of these cases further. That being said, the assignment-based model will continue to be viable for claims brought on behalf of businesses, as it avoids the additional admissibility burdens applicable in WAMCA-cases.
The impact of the DMA will also be interesting to watch. While private enforcement of the DMA has not yet taken off, it is likely that the Netherlands will also be a popular forum for bringing such claims for the reasons outlined above. Hybrid cases, where claims are based on alleged infringements of both the DMA and competition law, seem particularly well-suited to the Netherlands considering Dutch courts’ expertise in competition law. Together, these factors position the Netherlands as a strategic and attractive jurisdiction for future private enforcement actions.
Should you be interested in receiving a copy of our slides, please reach out to Ruben, Mattijs or Philine:
- Ruben Elkerbout (Partner): relkerbout@geradinpartners.com
- Mattijs Baneke (Counsel): mbaneke@geradinpartners.com
- Philine Wassenaar (Associate): pwassenaar@geradinpartners.com
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