1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?
  2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?
  4. Has the role of the management and/or employees of the company been assessed with respect to preventing, participating in, detecting and reporting violations, or remediating violations? Is there a link between the role of the company's management and/or employees and an effective CCP?
  5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?
  6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?
  7. Please indicate any additional considerations / rules, trends that are important in your country in relation to CCPs.
  8. Are there legal developments on the horizon in relation to CCPs?

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Netherlands
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1. Has your national competition authority published guidelines on competition compliance programmes (“CCPs”)? If so, what are the key components of an effective CCP?

The Authority for Consumers & Markets (the “Dutch NCA”) has not published any generic or general formal guidelines on CCPs.

The Dutch NCA did however carry out research on compliance programmes and compliance behaviour at companies active in the regulated sectors in 2021. In its final report, the Dutch NCA shares insights and observations regarding: (i) the structure of effective compliance training; (ii) good examples of compliance instruments; and (iii) common pitfalls and risks in compliance. The report can be found here.

In 2014, the former chairperson of the Dutch NCA outlined in a speech (which can be found here) what the Dutch NCA considers to be important preconditions for a CCP. Het mentioned the following:

  • A CCP should specify which conduct is prohibited in the company and where the greatest risks in terms of non-compliance lie in the company.
  • All directors, managers, and employees who run the risk of being involved in anticompetitive conduct must actively participate in the CCP and receive regular training.
  • Employees must declare that they will comply with the rules laid down in the CCP, e.g. by signing an integrity statement.
  • A monitoring system must be established to identify compliance risks. 
  • There must be a protocol for handling reports of possible violations of competition law. There must also be rules and guidelines for any disciplinary measures.
  • The company must update the CCP regularly.

2. Are there any recent cases in your jurisdiction where the NCA/competent courts have discussed the impact of CCPs?

In two decisions in 2021, the Dutch NCA addressed the CCPs of two companies it fined for a violation of the cartel prohibition. The companies in question had been involved in resale price maintenance. The decisions can be found here and here.

The companies argued that their CCPs should be considered as grounds for reduced culpability (and therefore a lower fine). However, the Dutch NCA rejected this argument. It stated that the existence of a CCP had (clearly) not prevented the companies from breaching competition rules. As a matter of fact, the existence of a compliance programme was deemed to prove that the companies were aware of the applicable competition rules concerning resale price maintenance. This line of reasoning was confirmed in a 2023 court ruling in another cartel proceeding (see here).

In another decision from 2024 (see here), the Dutch NCA stated that reducing a fine on the basis of a well-functioning compliance programme is the exception rather than the rule. The case at hand did not call for making such an exception.

In a 2016 case (see here), the companies fined by the Dutch NCA argued before the court that the Dutch NCA had not sufficiently taken into account mitigating circumstances, including the existence of a CCP. The court did not concur, noting that no proper functioning CPP had been implemented at the time of the infringement. Consequently, the Dutch NCA could reasonably conclude that this did not qualify as a mitigating circumstance warranting a reduction of the fine.

3. What arguments have been taken into account in relation to a CCP? Has the fact that a company has a CCP been assessed in terms of the effort made or the results achieved, i.e. the efficiency of the programme? Is the focus on future changes in CCPs or on existing programmes?

Few arguments related CCPs have been taken into account, as the Dutch NCA and the competent courts have never actually reduced fines because of a CCP being in place. However, in the 2016 case referenced above (which can be found here), a Dutch court rejected the CCP defence because the CCP had not been implemented at the time of the infringement. This suggests that if a company wants to rely on a CCP as a mitigating factor (and seek a reduction in the fine on that basis), it must at the very least be properly and effectively implemented at the time of the competition law infringement.

Yes. The Dutch NCA has the power to fine individual persons—more specifically directors (bestuurders) and factual managers (feitelijk leidinggevenden)—for their involvement in a competition law infringement. The maximum fine for an individual person is EUR 900,000.

As stated in question 1, the active involvement in a CPP of employees whose conduct can potentially violate competition rules (including directors and managers) is a precondition for the CCP to be effective.

5. Has the fact that an undertaking has a CCP been helpful in reducing a fine for an infringement of competition law? What facts, arguments or commitments were used to justify the reduction and what is the maximum reduction that can be granted? If a reduction is not granted, why not?

As far as we are aware, the existence of a CCP has not led to a reduction in a fine for an infringement of competition law by the Dutch NCA.

We note that in cases related to consumer law, the adoption and implementation of a CCP has been part of the commitments that the Dutch NCA has declared binding (see here and here).

6. Are CCPs (their adoption or updating) used as evidence for "self-cleaning" measures when an economic operator risks being excluded from a public procurement procedure for collusive behaviour?

Yes, the existence of a CCP has been considered by public procurement authorities when assessing whether a company has sufficient self-cleaning measures in place. However, the adoption of a CCP does not automatically mean that the company must be granted access to the public procurement procedure. A public procurement authority may still exclude such a company if they have legitimate reasons to doubt the integrity of the company in question (see here for the relevant court ruling).

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No legal developments are currently expected in the Netherlands concerning CCPs.