LIMITS AND CONTROL OF COMPETITION WITH A VIEW TO INTERNATIONAL HARMONISATION Piet Jan Slot IIA 2 General Aspects The constitution of the Netherlands does not conta in provisions laying general principles of the economic system, norare there any such provisions n other legislative instruments. It is fair to say the principle of the market economy is so deeply enshrined in the Dutch Political Economy that it is thought of as totally self-evident and in no need of affirmative constitutional or legislative provisions After all the Dutch East Indies Company, established in 1602, was the first lim ited liable company in modern times. However, it could be argued that the Competition Act which entered into force January 1, 1998, prov ides such principles. The Dutch Competition Act(hereinafter referred to as CA)is closely pattermed after the eC Competition rules which implement the basic principles of the EC Treaty. The latter are spelt out in Article 3(1)(g)EC: a system ensuring that competition in the internal market is not distorted. Furthermore Article 4(1)EC provides that the Community policies shall be: conducted in accordance with the principle ofan open market economy with free competition. Article 4(2) EC enumerating the activities of the Economic and Monetary Union, stipulates that these activ ities shall be conducted in accordance with the principle of an open market economy with free com petition 2. The basic model underly ing the Dutch Compet ition Act is the same as that the EC competition h wand that is worka ble competition as propounded by the Court of Justice of the European Communities(henceforth the EC) in the first Metro judgment. However, it is important to note that the assumptions underly ing the EC Competition policy have shifted towards a fuller recognition of economic theory as embodied by the Chicago school. The adoption of the new block exemptions on vertical restraints and the rules on patent licensing and R&D, as well as the ccompany ing guidelines, are a demonstration of this trend 3. The Netherlands is a founding member of the EC, the impact of its membership has been described a bove in section 1 4. The estimated GDP for the year 2002 is 450 billion Euro. The share of the Professorof European and Economic Law, Law Faculty University of Leiden This is all spelt out clearly n the Explanatory Memorandum to the Competition Act, Tweede Kamer 24707 Nr 3, 1995-1996, p. 9. A comprehens ive summary of the Dutch Act s provided by TR Ottervanger, J Steenbergen and sJ. van der Voorde, Competition Law of the European Union, the Netherlands and Belgium, Kluwer/LoeffLegal Series, 1998. See Bastiaan van der Esch, The System of undistorted competition of article 3(f) of the EEC Treaty and the duty of Member States to respect the central parameters thereof, Fordham International Law Joumal Vol l l, 1998, pp. 409-431. It should be remembered that the Treaty called the EC treaty and thatit has beenrenumbered thus art 3(f)is now art. 3(D)(g) Case 26/76, Metrov. Commission, [1977 ECR 1875
LIMITS AND CONTROL OF COMPETITION WITH A VIEW TO INTERNATIONAL HARMONISATION Piet Jan Slot* III A 2 1 General Aspects 1. The constitution of the Netherlands does not contain provisions laying general principles of the economic system, nor are there any such provisions in other legislative instruments. It is fair to say the principle of the market economy is so deeply enshrined in the Dutch Political Economy that it is thought of as totally self-evident and in no need of affirmative constitutional or legislative provisions. After all the Dutch East Indies Company, established in 1602, was the first limited liable company in modern times. However, it could be argued that the Competition Act which entered into force January 1, 1998, provides such principles. The Dutch Competition Act (hereinafter referred to as CA) is closely patterned after the EC Competition rules which implement the basic principles of the EC Treaty.1 The latter are spelt out in Article 3 (1) (g) EC: a system ensuring that competition in the internal market is not distorted. 2 Furthermore Article 4 (1) EC provides that the Community policies shall be: conducted in accordance with the principle of an open market economy with free competition. Article 4 (2) EC enumerating the activities of the Economic and Monetary Union, stipulates that these activities shall be conducted in accordance with the principle of an open market economy with free competition. 2. The basic model underlying the Dutch Competition Act is the same as that of the EC competition law and that is workable competition as propounded by the Court of Justice of the European Communities (henceforth the ECJ) in the first Metro judgment.3 However, it is important to note that the assumptions underlying the EC Competition policy have shifted towards a fuller recognition of economic theory as embodied by the Chicago school. The adoption of the new block exemptions on vertical restraints and the rules on patent licensing and R&D, as well as the accompanying guidelines, are a demonstration of this trend. 3. The Netherlands is a founding member of the EC, the impact of its membership has been described above in section 1. 4. The estimated GDP for the year 2002 is 450 billion Euro. The share of the * Professor of European and Economic Law, Law Faculty University of Leiden 1. This is all spelt out clearly in the Explanatory Memorandum to the Competition Act, Tweede Kamer 24707 Nr. 3, 1995- 1996, p. 9. A comprehensive summary of the Dutch Act is provided by T.R. Ottervanger, J. Steenbergen and S.J. van der Voorde, Competition Law of the European Union, the Netherlands and Belgium, Kluwer/Loeff Legal Series, 1998. 2. See Bastiaan van der Esch, The System of undistorted competition of article 3(f) of the EEC Treaty and the duty of Member States to respect the central parameters thereof, Fordham International Law Journal Vol 11, 1998, pp. 409-431. It should be remembered that the Treaty is called the EC treaty and that it has been renumbered thus art. 3(f) is now art. 3(1) (g). 3. Case 26/76, Metro v. Commission, [1977] ECR 1875
public sector is[I% and the share of the regulated markets is[]% Private Netherlands was 5th in the ranking of global competitiveness y ption 13,7 %. The consumption represents 59, 1% of GDP and public consur 1. The following markets are subject to some fom of govemment control/su pervision with regard to either market access, prices, or other conditions of production: health care, agriculture, electricity, natural gas, railways, telecommuni- ns and postal services. In several sectors, public service obligations may be im posed in case there is insufficient supply of such service in certain areas: air transport, maritime ca botage services, electricity, natural gas and telecommunicati ons. Some sectors are subject to special regulatory regimes supervising prudential rules: bankingand insurance, both life and no-life. The Competition Act applies to all these sectors unless the sectoral legislation provides for specific powers such as the power to regulate prices. This is the case in the health care sector, maritime transport, electricity, natural gas and telecommunications. It is nt to note that for all these sectors, with the exception of the health care sector, the national regulatory regimes are the result of EC legislation 2. State-owned enterprises are subject to the same competition rules, the Competition Act, as private enterprises. However, like EC competition law, the CA provides for exemptions for enterprises that are entrusted with the operation of ervices of general econom ic interest or having the character of a revenue producing monopoly. Such enterprises are exempted to the extent that the application of the competition rules would obstruct the performance in law or in fact of the particular tasks entrusted to them. It is also worth noting that under EC aw, the govemments of the Member States are enjoined from enacted monopolies or granting exclusive or pecial rights that lead the enterprises involved inevitably to infringe the competition les. This is the gist of Article 86 of the EC Treaty and the relevant case law The Economist Pocket: World n figures, 2000 edition p. 70. The rank ng reflects assessments for the ability ofa country to achievesustained highrates of GDP growth per head. The literature on the different sectoral regimes in the EC s vast: Faull and Nickpay, The EC Law of Competition, Oxford unversity Press, 1999, provide a good overview of the following sectors: financial services, energ, communications(telecoms, media and internet) and transport See further P.J. Slot and A Skudder. Common features of Community law regulation in the network-bound sectors, 38 CMLRev. 2001, pp. 87-129 See e.g. L Ritter, w.D. Braun and F Rawlinson, European Competition Law. A Practioner s Guide, 2ed. Kluwer, 2000, IX. See further, Faull and Nickpay, op cit chapter 5. The Court s judgements n the electricity cases, the German Post case as well as the Copenhagen waste case, show that the eCJ leaves a oons derable margin of d incretion for the member States when defang the particular tasks for undertaking operatingunderspecial or excusive rights. In these judgements the Court held that the standard of proof s whether or not the undertak ing concemed can fulfil its particular tasks under economically acceptable conditions. It s not necessary that it woud be absolutely mposs ible for the undertak ng to perform its tasks. Thus the test s relative rather than absolute. Secondly, the Court seems to have softened the burden of proof at least as far as the
SLOT 2 public sector is [ ] % and the share of the regulated markets is [ ] % Private consumption represents 59,1 % of GDP and public consumption 13,7 %. The Netherlands was 5th in the ranking of global competitiveness.4 2 State intervention 1. The following markets are subject to some form of government control/supervision with regard to either market access, prices, or other conditions of production: health care, agriculture, electricity, natural gas, railways, telecommunications and postal services. In several sectors, public service obligations may be imposed in case there is insufficient supply of such service in certain areas: air transport, maritime cabotage services, electricity, natural gas and telecommunications. Some sectors are subject to special regulatory regimes supervising prudential rules: banking and insurance, both life and no-life. The Competition Act applies to all these sectors unless the sectoral legislation provides for specific powers such as the power to regulate prices. This is the case in the health care sector, maritime transport, electricity, natural gas and telecommunications. It is important to note that for all these sectors, with the exception of the health care sector, the national regulatory regimes are the result of EC legislation.5 2. State-owned enterprises are subject to the same competition rules, the Competition Act, as private enterprises. However, like EC competition law, the CA provides for exemptions for enterprises that are entrusted with the operation of services of general economic interest or having the character of a revenue producing monopoly. Such enterprises are exempted to the extent that the application of the competition rules would obstruct the performance in law or in fact of the particular tasks entrusted to them. It is also worth noting that under EC law, the governments of the Member States are enjoined from enacted monopolies or granting exclusive or special rights that lead the enterprises involved inevitably to infringe the competition rules. This is the gist of Article 86 of the EC Treaty and the relevant case law.6 4. The Economist Pocket: World in figures, 2000 edition p. 70. The ranking reflects assessments for the ability of a country to achieve sustained high rates of GDP growth per head. 5. The literature on the different sectoral regimes in the EC is vast: Faull and Nickpay, The EC Law of Competition, Oxford university Press, 1999, provide a good overview of the following sectors: financial services, energy, communications (telecoms, media and internet) and transport. See further P.J. Slot and A. Skudder, Common features of Community law regulation in the network-bound sectors, 38 CMLRev. 2001, pp. 87-129. 6. See e.g. L. Ritter, W.D. Braun and F. Rawlinson, European Competition Law: A Practioner s Guide, 2nd ed. Kluwer, 2000, IX. See further, Faull and Nickpay, op. cit. chapter 5. The Court s judgements in the electricity cases, the German Post case as well as the Copenhagen waste case, show that the ECJ leaves a considerable margin of discretion for the Member States when defining the particular tasks for undertakings operating under special or exclusive rights. In these judgements the Court held that the standard of proof is whether or not the undertaking concerned can fulfil its particular tasks under economically acceptable conditions. It is not necessary that it would be absolutely impossible for the undertaking to perform its tasks. Thus the test is relative rather than absolute. Secondly, the Court seems to have softened the burden of proof at least as far as the
LIMITS AND CONTROL OF COMPETITION Moreover, Member States may not impose or induce anticompetitive behaviour by enterprises, reinforce the effects of anticompetitive behaviour or delegate regulatory power to private operato 3. The legal system of the Netherlands prov ides for a well defined legal regime for the control of state a id because the rules of article 87 and 88 EC as well as the relevant regulations apply direct 3 Private restrictions of competition general aspects 1. Dutch private aw, the law of torts, sanctions acts by which private parties exploit the breach of contract by other parties. Furthermore, it sanctions infringements of the law that cause damage to other private parties. There is no specific law on unfair competition. 2. The Dutch Competition Act, like the EC competition rules, is based on the prohibition principle. However, it should noted that the system of block exemption has moved the system in the direction of an abuse system. In the exercise of its unction, the Dutch Competition Authority(Nederlandse Meded in gingsautoriteit NMa)enjoys a clear margin of discretion. Although it is too early to evaluate its scope discretion, it is to be expected that the Dutch courts, when reviewing the decisions of the NMa, will grant it a similar, substantial margin of discretion as the ECJ has granted the EC Commission. The decisions of the NMa are subject to judical review Decis ions are defined as acts that produce legal effects for the parties involved. There is some dispute as to which acts are subject to review, the question has arisen whether a preliminary view expressed by the NMa can be appealed. The Rotterdam district court, which is exclusively competent to hear such rev iew cases ruled that such prelim inary views do constitute a decision 10 Member State s ooncemed. 6. It held that Member States do not have to prove that no other conceivable -often hypothetical measure could enable the tasks t be performe conditions. Theseare importantstatements whch are highly relevant for the subjectofpublicservice obligations. As we shall see below, the Community regimes for the network bound sectors leave a cons derable discretion for the Member States to defne public service obligations whilst at thesame time the relevant prow s ions such as article 3 of the electricity and natural gas directive specifically state that the prov isions of article 86(ex 90)haveto be observed. Case 267/86, van Eyckev. Aspa [1988]ECR 4769. See further,. Ritter, Bran and Rawlinson op. cit p 751 et se and Faull and Nickpay, op cit p 274-276 8. See in general P. Graigand G de Burca, EU Law. OUP 1998, p 506-510, discussing the intensity of rev iew by the ECJ. A clear example of the ECJ s tendency to leave a cons derable margn of d scretion to the Commis ion is found eg. in case C-68/94, Francev. Commssion, [1998] ECRI-1375 and case T-102/96, Gencorv Commiss on[ 1999 ECR II-753 See on this question CSKerse, EC Antitrust Procedure, 4" ed. Sweet& Maxwell, 1998 Acts which may be challenged p. 396-391 As the Ca is designed to follow EC competition law closely it is to be expected that the Dutch courts will take their clue from this case law
LIMITS AND CONTROL OF COMPETITION 3 Moreover, Member States may not impose or induce anticompetitive behaviour by enterprises, reinforce the effects of anticompetitive behaviour or delegate regulatory power to private operators.7 3. The legal system of the Netherlands provides for a well defined legal regime for the control of state aid because the rules of Article 87 and 88 EC as well as the relevant regulations apply directly. 3 Private restrictions of competition general aspects 1. Dutch private law, the law of torts, sanctions acts by which private parties exploit the breach of contract by other parties. Furthermore, it sanctions infringements of the law that cause damage to other private parties. There is no specific law on unfair competition. 2. The Dutch Competition Act, like the EC competition rules, is based on the prohibition principle. However, it should noted that the system of block exemptions has moved the system in the direction of an abuse system. In the exercise of its function, the Dutch Competition Authority (Nederlandse Mededingingsautoriteit, NMa) enjoys a clear margin of discretion. Although it is too early to evaluate its scope discretion, it is to be expected that the Dutch courts, when reviewing the decisions of the NMa, will grant it a similar, substantial margin of discretion as the ECJ has granted the EC Commission.8 The decisions of the NMa are subject to judicial review. Decisions are defined as acts that produce legal effects for the parties involved.9 There is some dispute as to which acts are subject to review, the question has arisen whether a preliminary view expressed by the NMa can be appealed. The Rotterdam district court, which is exclusively competent to hear such review cases, ruled that such preliminary views do constitute a decision.10 Member State is concerned.6. It held that Member States do not have to prove that no other conceivable -often hypothetical- measure could enable the tasks to be performed under the same conditions. These are important statements which are highly relevant for the subject of public service obligations. As we shall see below, the Community regimes for the network bound sectors leave a considerable discretion for the Member States to define public service obligations whilst at the same time the relevant provisions such as article 3 of the electricity and natural gas directive specifically state that the provisions of article 86 (ex 90) have to be observed. 7. Case 267/86, van Eycke v. Aspa, [1988] ECR 4769. See further,. Ritter, Braun and Rawlinson, op. cit. p.751 et se. and Faull and Nickpay,op. cit. p.274-276. 8. See in general P. Graig and G. de Burca, EU Law 2nd ed., OUP 1998, p. 506- 510, discussing the intensity of review by the ECJ. A clear example of the ECJ s tendency to leave a considerable margin of discretion to the Commission is found e.g. in case C-68/94, France v. Commission, [1998] ECR I-1375 and case T-102/96, Gencor v. Commission, [1999] ECR II-753. 9. See on this question C.S.Kerse, E.C. Antitrust Procedure, 4th ed. Sweet & Maxwell, 1998, Acts which may be challenged p. 396-391. As the CA is designed to follow EC competition law closely it is to be expected that the Dutch courts will take their clue from this case law. 10. Markt en Mededinging, 2001, p. 170
SLOT 3. Although the Act is based on the prohibition principle, which normally xcludes an assessment of the anticom petitive and the procom ive effects, there have been instances where such an assessment has in fact taken place. The NMa has a few cases rejected complaints because the acts did not constitute an infringement after an assessment of the anti-and procompetitive effects. Courts have also engaged in such an analysis 4. The Ca provides in Article 56 for administrative sanctions including the imposition of fines as well as civil sanctions, injunctions. Like EC competition aw agreements that are infringing the basic prohibition of cartels laid down in Art icle 6 CA, are void. Furthemore, aggrieved part ies can caim damages both as a result of a prohibited cartel or the a buse of a dominant position. Private parties can also ask for 5. As stated before, Dutch competition law follows EC competition law, and even though there has not yet been a case involving conduct abroad, it is to be expected that the ECJ s Woodpulp rule will be applied. However, it should be noted that in case such foreign conduct involves acts originating or perfomed in other EC member states, EC com petition h w may apply and therefore there will not be a need to apply Dutch competition aw. Following the EC competition aw principles, this would lead to the conclusion that restrictions of competition directed at foreign markets will not norma lly be caught unless such restrictions have an effect Poland, Hungary, Slovenia, the Czech Republic and Estonia on the Dutch market. 12 An exception to this has to be made in case of exports to other members of the European Economic Area and partners of Euro agreements such 4 Specific Aspects Most of the questions subsection can be answered by referring to ompetition law. It may re be useful for the reader to carefully read the competition lawreport 1. Although horizontal agreements are, like in EC competition law, looked at more critically than vertical agreements, this does not mean that there is a general resumption that they are prohibited. Such a clear presumption only applies in case of the so called hardcore restrictions: the fixing of prices and production quota as well as the sharing of markets and customers. Other foms of horizontal agreements may either be allowed under the block exemptions: R&D etc or by individual exemptions. 4 EC block exemptions are, pursuant to Article 12 and 13 of the CA, automatically applicable in the Netherlands. In January 2001, the EC Commission Joint cases 89, 104, 1 14, 116, 117, and 125-129/85, A. Alstrom c.s. v Commission( Woodpulp D)[1988]ECR5193. Accord ing t ths judgment the EChas jurid iton over agreements concluded outside the EC but implemented in the EC 12. Ritter, Braun and Rawlinson, op cit p57 See AM van den Bossche in: M. Maresceau, (ed h Enlarging the European Union. Relation between the EUand Central and Eastern Europe(London, 1997). O,2001,L304/3 and oJ,2001,L3047
SLOT 4 3. Although the Act is based on the prohibition principle, which normally excludes an assessment of the anticompetitive and the procompetitive effects, there have been instances where such an assessment has in fact taken place. The NMa has in a few cases rejected complaints because the acts did not constitute an infringement after an assessment of the anti- and procompetitive effects. Courts have also engaged in such an analysis. 4. The CA provides in Article 56 for administrative sanctions including the imposition of fines as well as civil sanctions, injunctions. Like EC competition law agreements that are infringing the basic prohibition of cartels laid down in Article 6 CA, are void. Furthermore, aggrieved parties can claim damages both as a result of a prohibited cartel or the abuse of a dominant position. Private parties can also ask for an injunction. 5. As stated before, Dutch competition law follows EC competition law, and even though there has not yet been a case involving conduct abroad, it is to be expected that the ECJ s Woodpulp rule will be applied.11 However, it should be noted that in case such foreign conduct involves acts originating or performed in other EC member states, EC competition law may apply and therefore there will not be a need to apply Dutch competition law. Following the EC competition law principles, this would lead to the conclusion that restrictions of competition directed at foreign markets will not normally be caught unless such restrictions have an effect on the Dutch market.12 An exception to this has to be made in case of exports to other members of the European Economic Area and partners of Euro agreements such Poland, Hungary, Slovenia, the Czech Republic and Estonia.13 4 Specific Aspects Most of the questions in this subsection can be answered by referring to EC competition law. It may therefore be useful for the reader to carefully read the EC competition law report. 1. Although horizontal agreements are, like in EC competition law, looked at more critically than vertical agreements, this does not mean that there is a general presumption that they are prohibited. Such a clear presumption only applies in case of the so called hardcore restrictions: the fixing of prices and production quota as well as the sharing of markets and customers. Other forms of horizontal agreements may either be allowed under the block exemptions: R&D etc. or by individual exemptions.14 EC block exemptions are, pursuant to Article 12 and 13 of the CA, automatically applicable in the Netherlands. In January 2001, the EC Commission 11. Joint cases 89, 104, 114, 116, 117, and 125-129/85, A. Alstrom c.s. v. Commission (Woodpulp I), [1988] ECR 5193. According to this judgment the EC has jurisdiction over agreements concluded outside the EC but implemented in the EC. 12. Ritter, Braun and Rawlinson, op. cit. p.57. 13. See A.M van den Bossche in: M. Maresceau, (ed.), Enlarging the European Union. Relation between the EU and Central and Eastern Europe (London, 1997). 14. OJ, 2001, L 304/3 and OJ, 2001, L 304/7
LIMITS AND CONTROL OF COMPETITION has published guidelines for horizontal agreements. 5 In view of the close between EC and Dutch competition law, these guidelines will also be followed by the NMa and the Dutch courts. Many joint ventures qualify for an individual exemption or when importanttechnological advantages are to be expected. lo enter the market, specially when it is clear that the parents could not on their forces 2. The legal framework for vertical restraints is EC regulation 2790/99, entered in to force June 1, 2000. As was expla ined above under 1, this regulation is also in force in the Netherands. Furthermore, the EC Comm ission hasalso published extensive guidelines on vertical agreements. 18 The new EC system for vertical a greements is based on the idea that under a market share of 30% all restrictions are allowed except the hard core restrictions listed in Article 4 of the reguation greements by parties with combined market share over 30% are not automatically void. Such agreements with a market of up to 50% may qualify for an individual exemption according to the guidelines. The hardcore restrictions are the same as those listed above for the horizontal agreements. Restrictions on intellectual property rights are covered by the block exemption when they are ancillary to a vertical agreement. All other restrictions in licensing agreements are covered by the specal block exemption regulation 240/96 on transfer of technology. 19 3. Like EC competition law, Dutch competition law prohibits the abuse of a dom inant position. This prohibition can de directly applied; no further action by the NMa is required The relevant geographical market is the Netherlands or a part thereof depending on the nature of the product involved. In one instance concerning the sharing of the market by the local notaries public, the relevant geogra phical market was defined the city of Breda Even though there is no case lawon this issue in the Netherlands, it is to be expecte that the NMa and the Dutch courts will follow the case aw of the ECJas propounded in the judgments Kali und Salz- and Compagnie Maritime Belge, as well as the Court of First Instance(CFI)in Gencor. 23 Similarly, the NMa and the Dutch courts OJ2001,C3/2 A good summary of Commision s treatment of joint ventures i given in Ritter, Braun and Rawlinson, op cit, Ch Ill. D and Ch. VI.E. 17 oJ1999,L33621. 18 )J 2000, C 291/1. An excellent dscussion of the new block exemption as well as the guidelines on vertical agreements is given by RWsh, Regulaton 2790/99: The Commiss ion snew sty le block exemption for vertcal agreements, 37CMLRev. 2000, 887-924 OJ1996,L31/2. NMa 1999, nr 952, Notarissen Breda. Although this deciion was based on art. 6 CA(the equivalent of art. 82 EC)there is no reason to assume that markets under art. 24(82 EC) cannot be Case C-98/94 and 3095, France and others. Commission, [1998ECR I-1395. Case C-395 and 396/96 P, Compagnie Maritime Belge and Others v. Commision, [ 2000JECR I-1365 CaseT-102/96,GencorLtd.V.commIssion,[1999jecril-753
LIMITS AND CONTROL OF COMPETITION 5 has published guidelines for horizontal agreements.15 In view of the close between EC and Dutch competition law, these guidelines will also be followed by the NMa and the Dutch courts. Many joint ventures qualify for an individual exemption, especially when it is clear that the parents could not on their forces enter the market, or when important technological advantages are to be expected.16 2. The legal framework for vertical restraints is EC regulation 2790/99, which entered in to force June 1, 2000.17 As was explained above under 1, this regulation is also in force in the Netherlands. Furthermore, the EC Commission has also published extensive guidelines on vertical agreements.18 The new EC system for vertical agreements is based on the idea that under a market share of 30% all restrictions are allowed except the hard core restrictions listed in Article 4 of the regulation. Agreements by parties with combined market share over 30% are not automatically void. Such agreements with a market of up to 50% may qualify for an individual exemption according to the guidelines. The hardcore restrictions are the same as those listed above for the horizontal agreements. Restrictions on intellectual property rights are covered by the block exemption when they are ancillary to a vertical agreement. All other restrictions in licensing agreements are covered by the special block exemption regula tion 240/96 on transfer of technology.19 3. Like EC competition law, Dutch competition law prohibits the abuse of a dominant position. This prohibition can de directly applied; no further action by the NMa is required. - The relevant geographical market is the Netherlands or a part thereof depending on the nature of the product involved. In one instance concerning the sharing of the market by the local notaries public, the relevant geographical market was defined as the city of Breda.20 -Even though there is no case law on this issue in the Netherlands, it is to be expected that the NMa and the Dutch courts will follow the case law of the ECJ as propounded in the judgments Kali und Salz21 and Compagnie Maritime Belge22, as well as the Court of First Instance (CFI) in Gencor.23 Similarly, the NMa and the Dutch courts 15. OJ 2001, C 3/2. 16. A good summary of Commision s treatment of joint ventures is given in Ritter, Braun and Rawlinson, op. cit., Ch. III.D. and Ch. VI. E. 17. OJ 1999, L 336/21. 18. OJ 2000, C 291/1. An excellent discussion of the new block exemption as well as the guidelines on vertical agreements is given by R.Wish, Regulation 2790/99: The Commission s new style block exemption for vertical agreements, 37 CMLRev. 2000, 887-924. 19. OJ 1996, L 31/2. 20. NMa 1999, nr. 952, Notarissen Breda. Although this decision was based on art. 6 CA (the equivalent of art. 82 EC) there is no reason to assume that markets under art. 24 (82 EC) cannot be similarly narrowly defined. 21. Case C-98/94 and 30/95, France and others v. Commission, [1998] ECR I-1395. 22. Case C-395 and 396/96 P, Compagnie Maritime Belge and Others v. Commission, [2000] ECR I-1365. 23. Case T-102/96, Gencor Ltd. V. Commission, [1999] ECR II-753