From the enforcer: Authority for Consumers & Markets

Netherlands: from the enforcer

Address:  Muzenstraat 41, 2511 WB Den Haag, The Netherlands
PO Box 16326, 2500 BH Den Haag, The Netherlands
Tel: +31 70 7222 000
Fax: +31 70 7222 355
Web: www.acm.nl

Contacts

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Martijn Snoep
Chairman of the Board
Email: [email protected]

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Cateautje Hijmans van den Bergh
Board Member
Email: [email protected]

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Manon Leijten
Board Member
Email: [email protected]

Questions and answers

How long is the head of agency’s term of office?

The chair of the board is appointed for a maximum period of seven years (the two fellow members of the board are appointed for a maximum of five years). The terms may be renewed once.

When is he or she due for reappointment?

The chair’s term will end on 1 September 2025.

Which posts within the organisation are political appointments?

The board is appointed by the Minister of Economic Affairs under the relevant provisions of the Dutch Framework Act governing autonomous administrative authorities.

What is the agency’s annual budget?

The estimated competition-related budget in 2020 was €18.7 million. The total budget for the Authority for Consumers and Markets (ACM) is approximately €69.5 million.

How many staff are employed by the agency?

There are 588 people working at ACM (including temporary staff) as of 31 December 2020. Approximately 147 people are involved in competition enforcement.

To whom does the head of the agency report?

The head does not report as ACM is an independent agency. The Minister of Economic Affairs bears political responsibility for the activities of the ACM.

Do any industry-specific regulators have competition powers?

Industry-specific regulators are integrated within the organisation and all competition powers are held by the ACM. The ACM is responsible for sector-specific regulation, consumer protection and the enforcement of competition law in the Netherlands.

Do politicians have any right to overrule or disregard the decisions of the authority?

The authority is independent in its decision-making on individual antitrust cases. In relation to policy decisions of general application (such as fining guidelines), these have to be approved by the Minister of Economic Affairs, prior to publication. For merger cases, the Minister of Economic Affairs can, in exceptional circumstances, overrule a decision by the ACM blocking a concentration (see also below).

Does the law allow non-competition aims to be considered when taking decisions?

The ACM considers non-competition aims within the framework of national and European competition law. For example, under Article 6, paragraph 3 of the Dutch Competition Act (the equivalent of Article 101, paragraph 3 TFEU), where sustainability plays a prominent role.

If, after a second-phase investigation in merger cases, the ACM decides against granting a licence for the merger, parties may request the Minister of Economic Affairs to overrule the ACM’s decision under section 47 of the Dutch Competition Act. The Minister of Economic Affairs shall grant the licence if this is considered necessary for reasons of public interest. In this case, public interest must outweigh the expected restriction of competition. This occurred for the first time in 2019 (see below).

Which body hears appeals against the agency’s decisions? Is there any form of judicial review beyond that mentioned above? If so, which body conducts this?

The authority’s decisions can be appealed to the District Court of Rotterdam, with a final appeal to the Trade and Industry Appeals Tribunal.

Has the authority ever blocked a proposed merger?

Yes, from time to time ACM blocks a proposed merger. For example, in 2019 having conducted a thorough investigation ACM refused to grant a licence for the acquisition of postal challenger Sandd by rival incumbent operator PostNL. ACM found that the planned acquisition would create a monopolist on the postal delivery market. The efficiencies gained from establishing a single postal network following the proposed PostNL/Sandd merger would fail to offset the anticipated price increases for consumer and business mail. On the basis of broader public interests at stake the licence was subsequently granted under conditions by the Minister of Economic Affairs. There is no final decision yet as the case is currently under appeal.

Has the authority ever imposed conditions on a proposed merger?

Yes. In 2020, ACM resolved four mergers with remedies:

  • Omring – Vrijwaard (healthcare: elderly care). Remedies in Phase II;
  • Thebe Wijkverpleging – Careyn (healthcare: district nursing, day activities, nursing home care etc.). Remedies in Phase II;
  • NS/PON (joint venture for travel apps). Remedies in Phase I; and
  • RiVier (the start-up of a digital transport platform by Dutch Railways NS and the municipal transport companies in Amsterdam (GVB), The Hague (HTM) and Rotterdam (RET). Remedies in Phase I.

Has the authority conducted a Phase II investigation in any of its merger filings?

Yes. ACM has seen an increase in the number of mergers that require Phase II investigation because of possible risks for the mergers having negative consequences. In addition, ACM has observed that the number of businesses that notify ACM of their merger plans is on the rise again after a dip in 2020. This dip was likely caused by the coronavirus (covid-19) pandemic. The number of merger notifications in the first half of 2021 was almost the same as the total number of notifications in 2020.

Has the authority ever pursued a company based outside your jurisdiction for a cartel offence?

Yes. For example, on 22 December 2010, the ACM fined 14 producers of flour in the Netherlands, Belgium and Germany for a total of almost €82 million. The ACM concluded that these companies, which account for the vast majority of the country’s flour products, agreed to share the market in order to limit competition and even went as far as to buy out and shut down rivals that would not join the cartel.

Do you operate a leniency programme? Whom should potential applicants contact?

Yes. Any company or person wishing to be considered for leniency must notify the ACM’s Leniency Office on +31 70 7222 302 or at [email protected] For further details on leniency in general and for our leniency guidelines, visit www.acm.nl/en.

Is there a criminal enforcement track? If so, who is responsible for it?

No, there is no criminal enforcement track.

Are there any plans to reform the competition law?

No.

When did the last review of the law occur?

In 2021, with the implementation of the ECN+ Directive, which empowers the competition authorities of EU member states to be more effective enforcers and to ensure the proper functioning of the internal market was transposed in Dutch law.

Do you have a separate economics team? If so please give details.

Yes, we have a separate economics team headed by our Chief Economist, Theon van Dijk ([email protected]).

Has the authority conducted a dawn raid?

Yes, the authority regularly conducts company inspections, on its own account, or on behalf of another competition authority.

Has the authority imposed penalties on officers or directors of companies for offences committed by the company?

Yes, the authority has imposed penalties in several cases on officers and directors of companies for offences committed by the company. For example, in the Used Cooking Oil case of 2021, ACM imposed fines for price-fixing agreements involving the purchase of used cooking oil. Personal fines were imposed on three individuals who exercised de facto leadership over the cartel arrangements for their involvement at the time of when the practices took place.

What are the pre-merger notification thresholds, if any, for the buyer and seller involved in a merger?

There are two pre-merger notification thresholds. First, the total turnover of the involved companies is at least €150 million per year. Second, at least two of the involved companies have an annual turnover of €30 million or more in the Netherlands.

Lower turnover thresholds apply to undertakings in the healthcare industry, which means that these kinds of undertakings are more likely to have to notify their concentrations. Undertakings in the healthcare industry, need to notify their merger if the combined turnover exceeds €55 million. In addition, at least two of the undertakings involved must each have a turnover in the Netherlands of at least €10 million.

For pension funds, different thresholds apply, based on gross premiums in the past calendar year, rather than turnover. A concentration between pension funds is notifiable if the joint value of their gross premiums was more than €500 million, and if at least two pension funds concerned received each at least €100 million from Dutch residents.

Are there any restrictions on minority investments?

There are no formal restrictions on minority investments. Minority investments in competitors are subject to ex post competition control.

What discounts are available to companies that cooperate with cartel investigations?

Businesses that conclude illegal price-fixing agreements or that share markets (both of which are considered cartels) may be able to escape very high fines or get lower fines if they confess their involvement in a cartel. Businesses and individuals that confess their involvement in a cartel to ACM may qualify for leniency, and thus escape a fine altogether or receive a reduction of the fine. Businesses or individuals will not be imposed a fine if they are the first to report their cartel and satisfy the conditions, even if ACM has already tracked down that cartel. If another business or someone else has already reported the cartel, the second or following party to come forward may still qualify for a reduction of the fine. That party would then have to provide sufficient new and relevant information.

Does the authority conduct criminal investigations and prosecutions for cartel activity? If not, is there another authority in the country that does?

No. The Dutch Public Prosecution Service is responsible for such prosecutions.

Netherlands: from the enforcer's competition economists

Address:  Muzenstraat 41, 2511 WB Den Haag, The Netherlands
Tel: +31 70 7222 000
Fax: +31 70 7222 355
Web: www.acm.nl

Contacts

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Dr. Theon van Dijk
Chief Economist
Tel: +31 70 722 23 90
Email: [email protected]

Questions and answers

How many economists do you employ?

In 2020, 39 economists worked on competition.

Do you have a separate economics unit?

Yes. A separate economics unit (Office of the Chief Economist) has been operational since 1 April 2006.

Do you have a chief economist?

Theon van Dijk is currently Chief Economist of the Authority for Consumers and Markets (ACM). He was appointed as Chief Economist on 1 October 2019.

To whom does the chief economist report?

To the board of directors of the ACM.

Does the chief economist have the power to hire his or her own staff?

Yes.

How many of your economists have a PhD in industrial economics?

The ACM employs 10 economists with PhDs in economics of industrial organisation.

Does the agency include a specialist economist on every case team? If not, why not?

Typically, at least one economist is on the case team. Depending on the complexity of the economic aspects of the case, additional economic experts or the Office of the Chief Economist are involved.

Is the economics unit a ‘second pair of eyes’ during cases – is it one of the agency’s checks and balances? If not, why not?

One of the tasks of the Office of the Chief Economist is indeed to be one of ACM's checks and balances in the decision process.

How much economics work is outsourced? What type of work is outsourced?

The value of economics-related work outsourced in 2020 was over €1 million, which was partly outsourced by the Office of the Chief Economist and partly by ACM's competition department.

Data collection and economic research, such as cost or accounting studies, or consumer panel studies, tend to be outsourced and used in cases such as Phase II mergers or sectoral studies.

Data collection and economic research, such as cost or accounting studies, or consumer panel studies, tend to be outsourced and used in cases such as Phase II mergers or sectoral studies.

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