National Ombudsman: NMa remiss in providing information

Thursday, 14 October 2010

The National Ombudsman has ruled that the Netherlands Competition Authority (NMa) was remiss in providing information in response to a question from a company. The NMa failed to immediately refer the company to a specialist lawyer when it was suspected that the Competition Act might have been violated. The NMa has stated in response that it takes the report very seriously and has meanwhile changed its policy. 

The company that filed the complaint with the National Ombudsman had telephoned the NMa’s information number in June 2006. The NMa requested the company to submit its questions in writing. In response, the NMa informed the company that it could not provide legal advice, but stated that the information had been duly received and that the question had been forwarded to a specialist to be answered. In October 2006 the NMa subsequently visited the company and informed it that an investigation had been instituted into possible violation of the Competition Act. That investigation ultimately lead to a commitment decision whereby the companies in question stated that they would put an end to their conduct and the NMa would then refrain from performing any further investigations and imposing a fine.

After a complaint regarding the course of events described above had been filed with the NMa to no avail, the company applied to the National Ombudsman in 2009. One of the aspects of the complaint was that the NMa had failed to answer the company’s questions, but had at the same time requested further information. Moreover, the NMa had failed to state that the information would be used for an investigation. The National Ombudsman ruled that administrative authorities must give citizens the possibility to use procedural possibilities available to them. Administrative authorities must therefore inform citizens truthfully and in a timely manner when a request for information is in fact notification of an investigation. It was not established that the NMa advised the company to obtain information from a specialist lawyer regarding its specific questions. The NMa has meanwhile changed its policy regarding the provision of information. However, the National Ombudsman is of the opinion that the provision of information in 2006 was inadequate.

In a response the NMa has stated that it takes the report by the National Ombudsman very seriously. Even before the report was issued the NMa started to change its policy. It is now clearly stated that the NMa cannot give any legal advice and that all information provided can be used in the context of its supervisory duties.