The Dutch competition authority's final report

Friday, 29 March 2013

In March 2013, the Dutch competition authority (“NMa”) published its annual report (2012). This is also its final annual report. On 1 April 2013, the NMa is set to merge into the new Authority Consumer & Market (“ACM”). The present report gives a recap of the NMa’s work and successes in 2012. It puts forward key figures and accounts for income and expenses. In this article, we summarize main findings.  

Competition

The NMa was active in several economic sectors. In particular: agriculture, industry and construction, financial and business services, trade, services and transport, network industries, media and health care. The NMa provides a brief explanation for every sector and illustrates its affirmative action. The preferred course of action may vary from imposing fines for anti-competitive behaviour, to a decision whether or not to grant a permit for a merger.

Figures

In 2012, the NMa imposed fines worth EUR 36.9 million.Remarkably, this is the second year in a row fines came behind the year before. For example, in 2010 the NMa imposed fines worth EUR 137.1 million. In 2011, fines dropped to EUR 39.7 million. Currently, NMa fines are receiving much public attention. Especially in the light of the political objective of the current liberal-socialist government:

“Competition fines (NMa) will be increased, because the NMa will impose more cartel fines. Fines areestimated to total 75 million in 2014, growing to become 125 million structurally”.

In total, in 2012 the NMa fined six cartels. Amongst them three cartels in the agricultural sector and one case concerning demolition firmsinRotterdam.Furthermore, eight cases were settled other than through a sanction process. An example would be the commitment decision regarding art auctions. Additionally, six individuals were fined (“feitelijk leidinggevenden”), compared to only two in 2011.

As to merger control, the NMa received 91 filings for a merger, acquisition or joint venture. This is a slight decrease with regard to 2011.

The NMa stayed within its budget for personnel and material costs. It accounted for approximately EUR 41.3 million in costs – the larger part having to do with fines imposed.

NMa decisions set aside by the courts

A company that disagrees with a NMa decision may put its objections to the NMa. After that, the NMa will take a new decision. At law, both the NMa and the company concerned may appeal to the Rotterdam Court. Subsequently, an appeal may be lodged to the College of Appeals for Trade and Industry (“CBb”). In 2012, court orders tended to favour the NMa, overall, 54% to 46%. This entails it is worthwhile litigating against NMa decisions.

As an example, in 2012 fine worth millions of euro’s, imposed on seven home care organisations, was struck down. In another case, fines imposed on publishing house and related individuals (in the context of a merger case) were substantially reduced. The courts judged the NMa in default in several construction fraud cases. Finally, the court has called back the NMa re procedural issues, including the right of a former employee to remain silent, as well as the scope of investigative powers.

ACM

The annual report briefly discusses the merger into the ACM of (1) the NMa, (2) the Independent Post and Telecommunication Authority(“OPTA”), and (3) the Consumer Authority. The ACM is set to kick off 1 April 2013.