Prevent cartel formation as a self-employed professional
Competition act and cooperation
Collaborating with other companies can have benefits. For example, you can take on larger assignments and tenders together. You can also share operating costs, risks, and knowledge. Make sure that you comply with the Competition Act. The Competition Act prohibits cartels. You form a cartel if you consult or make agreements with another company about, for example, prices for products or services. Or about how you divide the market. Agreements within a company are allowed. Read more about the rules for competition and cartels.
The cartel ban applies to all entrepreneurs
The Competition Act applies to all entrepreneurs. So not just to legal entities, such as private limited companies (bv) or public limited companies (nv). Even if you own a sole proprietorship (freelance, zzp’er), you must comply with this law. If you work within a cooperative with other independent entrepreneurs, the cartel ban also applies.
Fine for cartel agreements
If you do make cartel agreements, you could be fined by the Netherlands Authority for Consumers and Markets (ACM). The amount of this fine will be part of your turnover. ACM looks at the seriousness of the violation, the circumstances, and the duration. You could also be fined personally for participating in a cartel or for directing a violation.
Combination agreement for collaboration in tenders
With a large tender you can submit a quote together with other companies. If you win the tender, you will carry out the assignment together. This is called a combination agreement. Combination agreements also fall under the cartel ban. This means that you may only make agreements that offer benefits to the customer. And that are necessary for the collaboration.
Use the Combination Agreements Guide
Follow the step-by-step plan in the Combination Agreements Guide (in Dutch) of the Ministry of Economic Affairs and Climate (EZK) to determine whether a combination agreement is permitted in tenders.
Exceptions to the cartel ban
There are 4 exceptions to the cartel ban for self-employed professionals without personnel (zzp’er). In those cases, you are allowed to make agreements with other entrepreneurs about prices and other conditions. You are responsible for assessing or having assessed whether an exception applies to you.
Guideline for appointments that are allowed
ACM has drawn up a guideline for tariff agreements between self-employed professionals. The guideline applies to self-employed professionals who deliver their own work. This includes independent cleaners, translators, photographers, and parcel deliverers. Read more about the exceptions in the Guideline on tariff agreements (in Dutch) for self-employed persons on ACM.nl.
Exception 1: agreements between self-employed professionals who work side-by-side with employees
ACM does not regard zzp’ers who work side-by-side with paid employees in a company on a daily basis as a case for the Competition Act. The cartel prohibition does not apply to such activities. This means that zzp’ers who work 'side-by-side' with employees are allowed to make agreements with each other. And are, for example, allowed to consult with each other about rates and other conditions at the company they both work for.
Exception 2: trivia exemption for small turnover or small market share
Do you and your collaboration partners have a relatively small turnover? Or do you have a relatively small joint market share? Then you may be exempt from the cartel ban. This is called the trivia exemption (bagatelvrijstelling). This exemption has 2 different thresholds:
1. A maximum of 8 companies participate in the agreements. The joint annual turnover of these companies is a maximum of €5.5 million of goods. And a maximum of € 1.1 million in all other cases. 2. The joint market share of the companies does not exceed 10% in the affected markets. The agreement must not have a negative impact on trade between member states of the European Union.
Exception 3: efficiency improvements
Do the economic advantages of your arrangement outweigh the disadvantages of the limited competition? Then you may fall under this exception. You must meet several conditions:The agreement should improve the social protection of zzp’ers. For example, rates that are too low, making insurance (such as business risks and disability) or good equipment too expensive.The agreement should not go beyond what is necessary for its purpose. Involved zzp’ers must, for example, demonstrate that other options have been explored. Customers also benefit from the agreement. For example, better quality.There is enough room left for competition between zzp’ers. For example, the agreement concerns a minimum rate, not a fixed rate.
Exception 4: subsistence minimum
ACM does not impose fines if you make agreements with other zzp’ers about rates to ensure that you have enough income to live on (social minimum, in Dutch). The level of the social assistance benefit is the base line. ACM calculates on the basis of a 40-hour working week. And you need to take into account, among other things, hours that you can invoice to customers and costs for insurance.