In 2013 the Competition Authority (NMa) is scheduled to merge with the Independent Post and Telecommunications Authority and the Consumer Authority to create a single regulator, to be headed by new NMa Chairman Chris Fonteijn.(1) The three authorities currently cooperate on the basis of cooperation protocols. Recently, cooperation seems to be a hot topic with the NMa and the European Commission.
According to the minister of economic affairs, agriculture and innovation, the combining of sector-specific regulation, competition enforcement and consumer protection into a single regulator will result in synergies and improved cost efficiency. Increased global and technological developments require intensified cooperation between the three regulatory authorities, with supervisory tasks lying in partly the same (sub)markets.(2) The merger's estimated cost savings of approximately €7 million are an added bonus, which fits well with the Dutch government's intended budget cuts. However, the Lower House's opposition fears that these cost savings are the reason for the intended merger and that effective enforcement may be lost in the broader organisation.(3) This scenario appears not unlikely, given the NMa's recent admission in the press to struggle with capacity problems.(4)
The NMa also chose 'cooperation' as a theme for its 2010 Annual Report, which states that:
"the NMa more than ever reaped the benefits of cooperation, not just cooperation within the organization between the general competition oversight and industry-specific oversight departments, but also with other authorities and regulators, both domestic and abroad."(5)
Even recently, the NMa has been reaping benefits, as the Fiscal Intelligence and Investigation Service provided the NMa with cartel-related information found during an investigation, which led to the NMa investigating a potential real estate trading cartel.(6) However, there is still room for improvement: the NMa has indicated that it favours increased information exchange among regulators at national as well as international level(7) by removing the statutory restrictions in the Competition Act that prevent it from passing on information about activities falling under the supervision of other authorities.
The European Commission also seems to support increased cooperation among competition authorities. In addition to cooperating with national competition authorities through the European Competition Network, it is looking at new ways to increase cooperation among national competition authorities in the merger control field. On May 27 2011 a public consultation was launched on best practices for cooperation among EU national competition authorities to facilitate information sharing for mergers which are not subject to EU merger control, but which require clearance in several member states.(8) Additionally, NMa Acting Chairman Henk Don underlined the importance of the international competition network for the swift exchange of information in the event of cross-border cartels at the International Competition Network's Annual Conference.(9)
For further information on this topic please contact Jolling De Pree or Erik H Pijnacker Hordijk at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email ([email protected] or [email protected]).
(1) Chris Fonteijn became the chairman of the NMa Board on July 1 2011 and will also become the chairman of the new regulatory authority after the merger of the three regulators. Fonteijn was previously the chairman of the Independent Post and Telecommunications Authority Commission. See the NMa's press release of June 24 2011.
(2) Letter from the minister of economic affairs, agriculture and innovation to the Second Chamber of March 28 2011.
(3) Het Financieele Dagblad, Oppositie vreest voor kwaliteit van toezicht, June 8 2011.
(4) De Pers, Kartelwaakhond grijpt ook naast de shampoo, June 15 2011. According to the NMa's spokesperson, the NMa's extended powers as a result of the 2007 amendments to the Competition Act have led to more tasks, but not to more personnel, and thus to capacity problems.
(5) NMa's 2010 Annual Report, p 5.
(6) See NMa press release of April 28 2011.
(7)See NMa press release of April 21 2011.
(8) Draft Best Practices on Cooperation Between EU National Competition Authorities in Merger Review, May 27 2011.