Dutch regulator issues €40m fine over resale price maintenance

The Netherlands Authority for Consumers and Markets (ACM) said the conduct of Samsung Electronics Benelux B.V (Samsung) constituted a breach of Dutch and EU competition rules concerning anti-competitive agreements. It said the coordination took place over six years until the end of 2018.

Samsung disputed the ACM’s findings, claiming that it merely made recommendations to retailers about the prices to set for its TVs. However, the ACM said that “the interactions between Samsung and individual retailers clearly went further than simply providing suggested list prices or non-binding price recommendations”. It said the company “de facto announced market prices, and acted accordingly, instead of letting retailers set their own retail prices independently”.

Martijn Snoep, chairman of the ACM, said the price coordination “distorted competition at the retail level and led to higher prices for consumers”.

Amsterdam-based Machteld Hiemstra and Nienke Kingma of Pinsent Masons, the law firm behind Out-Law, said it is the first fine the ACM has issued in relation to resale price maintenance practices in some time. They said competition regulators in Germany and France had also recently imposed fines in relation to resale price maintenance. The UK’s Competition and Markets Authority (CMA) has also been active in clamping down on the practice.

Resale price maintenance is the practice where a manufacturer or brand owner sets minimum or fixed resale prices for retailers concerning either or both of online sales and offline sales. In contrast, the practice of issuing non-binding recommended resale prices or setting maximum resale price is generally permissible.

Hiemstra said: “In 2018, the ACM announced it had launched investigations into price fixing between manufacturers and retailers of consumer goods. Now, three years later, this has led to a fine for Samsung. The ACM is currently working on a campaign offering compliance guidance on the rules with regard to prohibited vertical price agreements.”

Kingma added: “Monitoring retail prices or offering price recommendations as such is not prohibited. However, such recommendations should be given neutrally whilst no pressure may be exerted on retailers to adopt such recommendations. Retailers must be free, all the time, to set their own selling price.”