The NMa recently published revised best practices on merger control procedures3 to incorporate the changes made to the Dutch Competition Act in October 2007.4 The most important amendments are listed below.
Remedies and suspension of term limits
In line with the amendments made in the Dutch Competition Act in October 2007, the revised best practices provide for the possibility to submit remedies in phase I. In addition, the best practices allow the parties to request a one-off extension of the phase I period of four weeks.
Publication informal opinions
According to the revised practices, the NMa will as from the present publish all its informal opinions on merger control issues. This will be helpful in practice, as the NMa formerly did not publish all the answers it provided on an informal basis.
Short form decisions
The revised best practices incorporate the amendments made in September 2008 extending the scope of the simplified procedure.5 As a result, the NMa may decide to handle a case under the simplified procedure if it can be cleared in phase I, and none of the following conditions is fulfilled: (a) a remedy is offered; (b) the NMa’s decision differs from an advice on the concentration by the Netherlands Healthcare Authority, the Independent Regulator of Post and Electronic Communications in the Netherlands, or the Dutch Media Authority; or (c) interested parties raise relevant objections during the handling of the concentration case. This will significantly reduce the number of motivated decisions.
Applicability of Government Information Act
The revised best practices take account of a Council of State’s ruling that the Government Information Act applies to the Dutch Competition Act, thus making it possible to request access to information on merger control cases. The revised best practices provide guidelines on how the NMa will deal with such requests. As a rule, the NMa will only consider information requests after it has decided on the case.
The revised best practices reflect the procedures to be followed in regard of media concentrations as a result of the Temporary Act on media concentrations.6 This Act introduced a plurality check for media concentrations, irrespective of merger control thresholds.