Collisie tussen CAO's en mededingingsrecht

Abstract

As a result of the entry into force of the new Competition Act [Mededingingswet (Mw)], the question arose in the Netherlands to what extent collective agreements could be affected by the new competition rules. More in particular the question mainly is whether a collective agreement can be considered a cartel agreement or that the conclusion of a collective agreement could result in abuse of a dominant position as referred to in the Competition Act or the EC Treaty. If this is the case, the collective agreement would be in jeopardy, and with it the entire Dutch system of concluding terms and conditions of employment. The following question has been researched in this study: Is there a conflict between Dutch (extended) collective agreements and the prohibition on cartel agreements under Article 6 of the Competition Act and/or Article 81 EC on the one hand and the prohibition of abuse of a dominant position under Article 24 of the Competition Act and Article 81 EC on the other hand? If so, what then are the consequences and, if necessary, how could or should these be prevented and/or remedied? With respect to the prohibition on cartel agreements it is first examined whether the prohibition should actually be applied to collective agreement clauses, given that the Court has granted collective agreements clauses immunity from the prohibition on cartel agreements in its case-law. The Dutch Competition Authority has moreover followed the Court’s example in the cases of Van Eck Havenservices, SVB/SOOB and ATG/SOOMT. The exception to the prohibition on cartel agreements for collective agreement clauses appears to be an odd step, but did not entirely come out of the blue considering the case-law, EC policy and economic theory. With respect to the prohibtion of abuse of a dominant position things are different, as the ECJ has not expressly granted immunity with respect to the prohibition of abuse of a dominant position. However, one cannot conclude that the Court is therefore of the opinion that immunity does not apply to this prohibition. The Court has simply not yet pronounced on this question. The prohibition of abuse of a dominant position can be applied alongside the prohibition on cartel agreements, i.e. also in cases where a clause has been exempted from the effect of the prohibition on cartel agreements, it can still be covered by the prohibition on abuse of a dominant position. The Court’s decision to exempt social policy objectives pursued by collective agreements is not in itself remarkable, but the construction is, as solutions are no longer sought under Article 81(3) EC, but an entirely new exception is created. Two stumbling blocks remain with respect to the prohibition on cartel agreements, namely the question whether in respect of the term undertaking activities should be looked at separately or in unison and the question whether the proportionality test forms part of the immunity test. More of a problem is the fact that it is not clear whether the collective agreement’s immunity from the prohibition of cartel agreements may also apply to the prohibition of abuse of a dominant position.