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Probation on Cartels Does Not Apply to Adoption Agreements

The probation on cartels does not apply to a covenant which includes agreements between institutions that mediate in relation to international adoption. This appears from a decision taken by NMa. The mediating institutions (licence holders) cannot be regarded as undertakings in terms of the Competition Act. As a result, the practices of these institutions fall outside of the scope of the Competition Act. NMa has therefore dismissed the complaint made by Nederlandse Adoptie Stichting (NAS).

According to NMa, the activities of the licence holders focus on fulfilling a task which is in the public interest, namely ensuring the careful realisation of international adoptions. The emphasis in this regard is on protecting the interests of the child. It is precisely to protect these interests that (inter)national agreements have been made and rules have been drawn up to guarantee that the adoption procedure is carried out carefully. The tasks of the license holders are part of the statutory adoption procedure. In addition, the legislation includes provisions from which it can be concluded that the activities of the licence holders may not overlap. The licence holders are not permitted to enter into relationships with institutions abroad which already have relationships with other licence holders.

NAS's complaint was directed, for instance, that in the large number of mediating institutions which have a licence to arrange adoptions. NAS is of the opinion that this is a cartel and that a dominant position has been abused. According to NAS, the licence holders have subdivided the world by making claims to countries for which they wish to mediate in the case of adoption, on the basis of a covenant agreed in 1995.