On 1 January 2013, the NMa will merge with the Independent Post and Telecommunications Authority (OPTA) and the Consumer Authority (CA) into a single regulator: the Netherlands Authority for Consumers and Markets (ACM). Its new chairman, Mr Chris Fonteijn, gave a preview of the ACM's new (enforcement) strategy.1
The act creating the new authority ACM was adopted by the Second Chamber of the Dutch parliament on 2 October 2012. The act still awaits approval by the First Chamber, after which the ACM will commence operations on 1 January 2013. The ACM will look at markets not only from a competition law perspective but will also have powers in the field of consumer protection and ex ante regulation of markets. The ACM's new chairman Fonteijn made clear that the authority's goal is not so much to detect and impose sanctions on infringements but to make markets function by using instruments that are tailored to a market's needs.
Since commitments decisions may in some cases be better suited than fine decisions, Fonteijn indicated that he expects the ACM to make more use of the commitments instrument. These, can generally be adopted more quickly and efficiently than a traditional fine decision. In the course of 2012, the trend of more commitments decisions has already been apparent in cases that do not appear to concern hard core infringements. The ACM also intends to make use of market scans more often, with which it will seek to inform and mobilise consumers about markets that do not function very well. A new tool that is currently being created for the ACM is the power to issue binding instructions for an undertaking to conduct itself in a particular way in order to comply with the cartel prohibition; the ACM will not have to establish that the undertaking committed an infringement. The ACM can impose fines of up to EUR 450,000 or 1 per cent of turnover for non-compliance with the binding instructions it has issued. This tool, which will not be available until 2014, is intended to enable the ACM to specify the contents of the cartel prohibition in a specific situation. This will enable the ACM to be even more flexible and to address possible competition concerns at a very early stage.
It was made clear by the ACM's new chairman that this does not mean that the ACM will be a soft authority but that it will continue to enforce competition law and impose sanctions whenever necessary. This will probably be the case with all hard core infringements. In particular, the new chairman stressed that in every investigation it will continue to assess whether individuals can be held personally liable; these are usually executives that have been personally involved in the infringement, have given instructions, or have refused to prevent infringements from occurring. The ACM will also focus more on attributing liability to parent companies. Fonteijn explicitly mentioned minority shareholders in this respect. This is in line with the European Commission's approach of attributing liability to minority shareholders and joint venture partners. This approach, which the Commission adopted in 2007 in the Gas Insulated Switchgear and Chloroprene Rubber cases, has recently been approved by the General Court.
Footnotes
1. Speaking notes Mr Chris Fonteijn, 10e Jaarcongres "Ontwikkelingen Mededingingsrecht", 4 oktober 2012.
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