Netherlands: Authority for Consumers and Markets

Mission and strategy of the Authority for Consumer and Markets

Five years ago, the Authority for Consumer and Markets (ACM) was created with the core objective to promote opportunities and options for consumers and business. We create opportunities for new products, services, innovation and businesses by intervening to prevent restrictions that hinder new entrants in entering markets. ACM creates options for consumers, and ensures that they are aware of their rights, in order to enable them to make real and thoughtful choices based on proper information, provided by companies who are unambiguous about the products they offer. These conditions provide the basis for well functioning markets. The ultimate goal is to ensure that all businesses play by the rules, and that consumers are sufficiently well-informed to exercise their rights.

To reach these goals, ACM has to be aware of the problems faced by consumers and businesses. Especially in network sectors, such as markets for energy, telecommunication, transport and post, but also in the general fields of competition and consumer rights. As a multifunctional authority, ACM combines knowledge in the fields of consumer protection, competition oversight and (network) sector-specific regulation, providing the authority with the opportunity to enhance effectiveness and efficiency in oversight and enforcement.

To detect market problems, ACM executes independent market analyses and presents itself as an organisation that is open to input from the outside world. This openness is one of our core values, and we emphasise that by engaging with involved stakeholders, like consumers, business and co-supervisors – both national and international. We stand up to non-complying undertakings that harm markets and consumer interest, on the basis of the following three questions.

• What is the extent of the harm to consumers?
• What public interest is at stake?
• Is ACM in a position to take action effectively?

Legal basis

ACM was established by the ACM Establishment Act on 1 April 2013, when three separate market authorities – the Netherlands Competition Authority, the Independent Post and Telecommunications Authority of the Netherlands (OPTA) and the Netherlands Consumer Authority (CA) – were formed into one new Authority for Consumers and Markets. On 1 August 2014, the Streamlining Act came into force. ACM implements over 20 pieces of legislation. The Streamlining Act had the objective of harmonising and simplifying various procedural rules and cutting inefficiencies relating to ACM’s operations, thereby creating a clear and uniform set of rules for ACM. Under the Streamlining Act, some competences that previously only applied to competition enforcement were extended to the areas of consumer protection and sector-specific regulation.

To achieve its core objective, ACM is armed with a toolkit of instruments to solve market problems. For instance, ACM is provided with multiple intervention possibilities. Traditionally, fines have been an important way to sanction violators. Under the 2014 ACM Fining Guidelines, we have the right to fine offending undertakings and their executives. Fining can have a distinct deterrent effect. However, due to ACM’s multipurpose character and broad regulatory framework, we have a variety of instruments at our disposal.

In its oversight style, ACM focuses on the effect of its actions, rather than the type of instrument this involves. We aim to choose the instrument, or a combination of instruments, that is most likely to offer a permanent solution to the problems we face to tackle the underlying causes of the market problem at hand. As a result, interventions are characterised by a specific focus on solving the underlying market and consumer problems, while at the same time taking into account the relevant context and market structure.

Apart from fines, ACM may impose binding instructions and structural remedies. Commitment decisions are also an important tool. We have the power to impose orders subject to periodic penalty payments on companies to end violations. Another important element of our enforcement practice is our communications policy: ACM is an open organisation. In this role, we also put a lot of effort in drafting informal guidance opinions and engaging in dialogue with market participants. Moreover, we publish studies and advisory papers, such as market scans and informal opinions, on our website, while we also involve in advocacy through advising governments in cases related to our fields of interest.

Last year’s achievements

ACM wishes to take action in those areas where it can truly make a difference for consumers and businesses. That is why we work on developing substantiated estimates to calculate how much our work has saved Dutch consumers. In 2017, ACM saved consumers €1 billion. This amount consists of €290 million for activities completed in 2017, and €740 million for activities from previous years, the impact of which continued in 2017. In addition, we study the broader effects of our oversight efforts. In 2017, for example, we looked into the effects of hospital mergers, the use of ‘rapid interventions’ and the oversight of primary-care collaboration.

In 2017, the court upheld most of ACM’s decisions in appeal. The courts upheld all of the decisions related to our sector-specific regulation. With regard to sanctioning decisions, the established violations have, for the most part, also been upheld, but the courts have often found the imposed fines too high.

ACM also loses cases. In 2017, our decisions on the ‘foreclosure auctions’ were overturned on appeal to the Dutch Trade and Industry Appeals Tribunal. From our perspective, this was a setback. It is important that the courts review ACM’s work critically. The insights gained from the judicial process help us enhance our effectiveness.

For the effectiveness of our oversight, it is critical to be engaged with all of our stakeholders. In order to engage with consumers and businesses on a constant basis, we increasingly use visuals such as infographics, social media and awareness campaigns. In this way, we are able to influence consumer and business behaviour more effectively. In our campaign ‘Don’t just order something on social media. Find out first who they really are’, we warned consumers against impulse buying on social media such as Facebook and Instagram. ACM also collaborated with popular vloggers on YouTube to reach youth who are particularly susceptible to impulse buying, because they are very active on social media. In addition, we launched an online toolkit that makes it easier for debt counsellors to take action against unfair commercial practices on behalf of their clients. In 2017, ACM again warned against illegal cartels through its anti-cartel campaign ‘Cartels never go unnoticed’. In order to provide more insight into how we deal with tip-offs, we put a video online in which we explained that process.

In the paragraphs below, we set out some of the highlights of ACM’s work in 2017.

Competition in the financial sector

The monitor financial sector (MFS) is a special team within ACM, which carries out market studies into competition problems. In this way, ACM has identified a number of competition problems in the financial sector and the insurance market, and has also made recommendations for policymakers, the sector itself and other stakeholders. In 2017, ACM conducted a study into the obstacles that fintechs encounter when entering the financial sector. It is important that fintechs do not face any unnecessary obstacles, thereby creating opportunities for increased competition and more innovation. ACM believes there is a genuine risk of new providers in the payment market becoming excluded. ACM recommends introducing a simpler banking licence for fintechs and argues creating more clarity about the exact conditions under which banks must grant access to bank accounts.

Ports and transport

ACM requires companies that operate in ports of the Netherlands to compete on the merits. Behaviour such as price-fixing and customer-sharing harms the competitive position of the ports, and also harms consumers, who end up paying too much for products that are shipped and redistributed through these ports. As part of the ACM-focus on ports and transport, we focused on education about cartel prevention and dealing with cartels. A previous study conducted on businesses in the ports and transport sectors showed that businesses are insufficiently aware of the basic rules regarding fair competition. In 2017, ACM sent a letter explaining the basic rules regarding fair competition to over 3,500 businesses based in Amsterdam and Rotterdam that are active in the ports of those cities. ACM also launched an online ‘Cartel Test for the Port Sector’ on its website.

Apart from these guidance measures, ACM collaborated with the German Bundeskartellamt to help them to reach settlements with three undertakings and their executives, totalling approximately €13 million in connection with their involvement in a cartel in the harbour towage sector. A total of four undertakings have acknowledged their involvement in cartel activities.

Ports and transport continues to be a priority for the ACM in the 2018–2019 ACM Agenda.

Competitive neutrality

The Dutch government is a key player in the Dutch economy. The government introduces laws and rules, and it regulates and stimulates the economy. However, it is also active in markets, acting as a business, as owner and shareholder, and as a client. ACM oversees local governments that are active in markets. The roles and rules must be clear to every market participant. In our oversight, we also take into account public interests. In certain situations, the market may be disrupted due to government intervention. We can take action against such market disruptions. ACM informs governments in a timely manner about the effects of their policies on competition and the market. ACM protects business owners against unfair competition from government businesses and we see to it that government businesses compete fairly. Equal opportunities for all businesses help realise healthy competition and increase the economy’s innovative capabilities.

In 2017, the ACM determined that several municipalities were not in compliance with the Dutch law on competitive neutrality. For example, ACM ordered the Dutch city of Deventer to continue to offer residents with low incomes a choice between commercial debt advisors and municipal debt advisors. In 2017, ACM also ordered the municipality of Veenendaal to set cost-covering tariffs for municipal car parks and parking garages.

Railways

One noteworthy case in 2017 was the €41 million fine imposed by the ACM on Dutch railway company NS for abusing its dominant position in the 2014 tender process for the public-transport contract in the southern Dutch province of Limburg. ACM has never before imposed a fine of such magnitude on an undertaking. ACM fined NS for submitting a loss-making bid in the 2014 tender process for a public-transport contract. As a result, other bidders could not match the bid, even if operating as efficiently as NS. In addition, NS was found to have put its competitors at a disadvantage and to have given its subsidiary unfair advantages during the tendering process. NS has filed an appeal.

Schiphol airport

In October 2017, the airline KLM agreed that it would no longer have any contact about growth opportunities of other airlines. Schiphol airport agreed to develop its plans for investments, charges, and marketing strategy independently. This was laid down in commitments made to the ACM, to ensure a level playing field for competitors at Schiphol airport. KLM and Schiphol airport acknowledge that interactions have taken place that carried anticompetitive risks. ACM did not establish any violation. The commitments will be finalised in 2018.

International cooperation

The Netherlands has an open economy and ACM’s international cooperation within the European Competition Network and International Competition Network (ICN) is central to improving our enforcement. Taking up the position of vice chair of ICN in 2017 allowed us to contribute more and play a stronger role in explaining the benefits of competition in politically uncertain times.

ACM priorities 2016–2017

ACM’s priorities for 2016–2017 are set out in the ACM Agenda. This document is based on ACM’s own research, complaints received by ConsuWijzer (ACM’s online consumer portal), dialogue with businesses and consumer organisations, online input on social media and information from the ACM’s website for businesses, consumers and (governmental) organisations. The ACM Agenda sets out six strategic themes on which the ACM focused on in the period 2016–2017:

• healthy collaboration in healthcare;
• energy markets in transition;
• online consumers;
• ports and transport;
• clear prices and conditions; and
• competitive neutrality/ governments and free markets

Two of these six priorities (ports and transport, and competitive neutrality) have been described above. The remaining four are briefly outlined here.

Healthy collaboration in healthcare

ACM wishes to make health insurers and municipalities aware that they collectively bear responsibility for making sure that healthcare is accessible, affordable and of high quality. Healthcare providers and health insurers collaborate in many different ways. Collaborations can sometimes benefit consumers, but sometimes they do not. ACM sees in the healthcare market that there is room for collaborations that offer benefits to consumers (both as patients and insured), for example, if they improve healthcare affordability or the quality of treatments. However, some forms of cooperation do not benefit consumers such as price-fixing agreements or unnecessarily restricting the options of consumers when selecting a healthcare provider.

Once again, in 2017, hospital mergers attracted a lot of attention. ACM cleared several concentrations in the hospital sector such as the acquisition of the Admiraal De Ruyter Hospital by Erasmus Medical Center, and the merger between Academic Medical Center (AMC) and VU University Medical Center (VUmc) in Amsterdam. Furthermore, we attached requirements to the planned merger between two southern hospitals, Catharina Hospital and Sint Anna Hospital. In late 2017, we announced that ACM has sharpened its focus on anticompetitive risks of hospital mergers. An important reason for this was that the results of our studies into the effects of hospital mergers on quality, price and volumes did not indicate any improvements. The public debate about mergers predominantly centres on the question of what mergers mean to the hospital’s manageability and to the ‘human dimension’. As part of our ‘sharper focus’ on the anticompetitive risks of hospital mergers, we argued that, if lawmakers wish to have other public interests play a role in hospital merger assessments, they be incorporated into the health-care-specific merger assessment. Clear and concrete standards are critical if this route is chosen.

Energy markets in transition

The energy market is undergoing major changes. Energy is generated more and more in a sustainable manner. New services are introduced, and new competitors enter the market. The transition towards a more sustainable supply of energy not only raises questions for the energy sector, but obviously also for ACM as energy regulator. For example, large-scale investments in solar and wind power will result in more volatile energy-production levels. ACM plays a role in the process of finding answers to the challenges that we face as a result of the energy transition.

In 2017, ACM clearly explained how we see our position as regulator with respect to the realisation of sustainability initiatives. ACM now accords extra weight to sustainability as a public interest alongside the previously recognised public interests of affordability and security of the energy supply. Tensions may arise between affordability and security. On the one hand, consumers should not end up paying more for energy than necessary. On the other hand, energy should always be available to all buyers. Sustainability adds another dimension to this, as sustainability may be at odds with both affordability and security. Against the backdrop of such complex tensions, ACM sees its task as ensuring that the transition towards a sustainable supply of energy is as efficient as possible, while continuing to meet the preconditions of affordability and security. We do so by:

• continuing to work towards well functioning markets and towards market integration;
• giving system operators the opportunity to recoup their efficient costs; and
• empowering consumers in the market (old and new), and protecting them, where necessary.

Energy markets in transition remain a strategic priority for ACM in 2018–2019.

Online consumers

Competition rules and consumer protection rules should not unnecessarily stand in the way of innovation. Online platforms offer consumers many advantages. At the same time, businesses that operate such platforms cannot use their possibly dominant positions to stop innovation or to prevent newcomers from entering the market. To that end, enforcement of the rules may be needed. In 2017 ACM has been committed to:

• mapping out the reliability of online reviews;
• making consumers aware of the risks involved with impulse purchases on social media;
• protecting the privacy of consumers on the internet;
• mapping out the pros and cons of online platforms; and
• investigating whether the bundling of telecom products poses a problem.

The broader digital economy will be a strategic priority for ACM in 2018–2019.

Clear prices and conditions

Consumers are able to choose from many different options. But are consumers also able to make the right choice? That is only possible if prices and conditions are clear. With some products, consumers only find out during the purchasing process that more and more costs need to be added. Think of service fees when purchasing concert tickets or when picking up a new car. We call this phenomenon ‘drip pricing.’ Companies must inform consumers before the actual purchase about the price and all additional costs, as well as about the conditions associated with the purchase. Businesses owe such clarity to consumers, but also to one another. After all, if businesses are unclear about their prices and conditions, they help create an uneven playing field.

In 2017, ACM carried out a follow-up check which showed that the advertised prices of new cars include the unavoidable ‘closing fees’. This was a result of a campaign that ACM launched in mid-2016 in order to make prices in the car industry more transparent. In addition to this result, ACM also established that prices of online tickets for concerts, theatre shows and festivals are displayed with all unavoidable costs included.

ACM priorities 2018–2019

ACM’s priorities for 2018–2019 are set out in the new ACM Agenda. In 2018 and 2019, the ACM will focus its attention on:

• the digital economy (see above);
• energy in transition (see above);
• competition in the port sector (see above); and
• prices of prescription drugs. Regarding this, competition in the pharmaceutical industry helps stimulate innovation and keep drugs affordable. ACM makes sure that drug manufacturers comply with competition rules. In our oversight efforts, we do take into consideration the incentives to innovation in the industry, because that helps towards the development of new drugs.

ACM will continue with its strategy to improve the awareness of and compliance with the competition rules.