On January 1 2013 the Competition Authority will merge with the Independent Post and Telecommunications Authority and the Consumer Authority into a single regulator: the Netherlands Authority for Consumers and Markets (ACM). Its new chairman, Chris Fonteijn, recently gave a preview of the ACM's new enforcement strategy.(1)
The act creating the new authority was adopted by the Second Chamber of Parliament on October 2 2012. The act still awaits approval by the First Chamber, after which the ACM will commence operations on January 1 2013.
The ACM will not only look at markets 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 has made clear that the authority's goal is not so much to detect and impose sanctions on infringements as to make markets function by using instruments that are tailored to their needs.
Since commitment 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. During the course of 2012, the trend of more commitment decisions has already been apparent in cases that do not appear to concern hardcore infringements.
The ACM also intends to make use of market scans more often, through which it will seek to inform and mobilise consumers about markets that do not function 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 will be able to impose fines of up to €450,000 or 1% 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 an early stage.
The ACM's new chairman has made clear 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 hardcore 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 who 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 European General Court.
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 (firstname.lastname@example.org or email@example.com).
(1) Speaking notes, Chris Fonteijn, 10e Jaarcongres 'Ontwikkelingen Mededingingsrecht', October4 2012. Available at www.nma.nl/images/Kurhausspeech%20Chris%20Fonteijn%204%2010%2012%20def22-202341.pdf.
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