In a press release of 21 November 2013, the Dutch Competition Authority (ACM) announced that it would terminate its investigation into a possible price-fixing cartel on the market of mobile telecommunications and accept binding commitments from the three major mobile providers in the Netherlands, T-Mobile, KPN and Vodafone.
The ACM investigated the way mobile telecom operators determine their pricing policy and competitive strategy, but found no evidence of price-fixing agreements. In the course of its investigation, however, the ACM found that certain public statements made by mobile operators with respect to future market behaviour could entail antitrust risks. According to the ACM, such risks can occur when companies make public statements (for instance, in the media, at conferences or in interviews for specialised magazines) concerning measures that will have a negative impact on consumers, at a time when it has not yet been decided that such measures will be implemented. According to the ACM, this type of public statement can result in collusion since an operator makes its own market behaviour dependent on the reaction of competitors to this statement.
The ACM referred to two examples where a unilateral disclosure of future behaviour by one of the mobile operators resulted in a coordinated effect between competitors. At a Telecom Time conference, a KPN director announced that KPN was contemplating reintroducing connection fees. Following this statement, both T-Mobile and Vodafone prepared internal documents proposing the reintroduction of a connection fee and referring to the signal provided by KPN. Within half a year, the three mobile operators reintroduced connection fees. A second example concerned an interview with a KPN director in a specialised telecoms magazine, in which he announced that new market strategies were needed and that KPN would focus on market value rather than market share, suggesting that KPN would not follow an aggressive price strategy, if possible.
The ACM reasoned that, in a normal market situation, an operator unilaterally introducing measures such as the introduction of a connection fee or the increase of prices, risks losing clients to cheaper competitors. However, by making public statements about future market behaviour at a time when a decision has not yet been taken, companies can inform competitors about their desired strategy and subsequently adapt their market behaviour depending on the reaction of those competitors. This type of public statements can lead to coordinated effects on the market with a negative impact on consumers Following discussions with the ACM about these antitrust risks, T-Mobile, KPN and Vodafone have committed that their senior management will refrain from making public statements about future prices and other commercial conditions on the Dutch market that would entail a negative effect for consumers, before the internal decision procedure has been completed. The operators will also include this commitment in their respective compliance programmes. The commitment of the operators will be binding for a period of three years.
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