Early 2019 PostNL asked permission from the Dutch Authority Consumers & Markets (ACM) to acquire Sandd, its largest mail delivery competitor in the Netherlands. ACM refused permission and also concluded in its decision that its refusal would not threaten the so-called universal postal service. Immediately afterwards PostNL requested the then State Secretary for Economic Affairs and Climate Policy to grant a permit on account of important reasons of general interest: the continuity of postal services was at stake according to the State Secretary. For this reason in particular the State Secretary issued a permit; at that time this was a first in the history of the Dutch Competition Act.
De Vos diensten and RM Netherlands, both of which are active on the postal and parcel market, expected the same competition issues to arise due to the acquisition as ACM, saw no need for the acquisition, nor did they identify any general interest that would be served by the acquisition. They therefore lodged an appeal against the State Secretary’s decision. The Rotterdam district court annuled the permit in June 2020, the State Secretary and PostNL lodged an appeal against this decision with the Dutch Trade and Industry Appeals Tribunal and the State Secretary issued a second permit on the basis of virtually the same arguments.
The Trade and Industry Appeals Tribunal has now ruled that both permits have been wrongly issued and the State Secretary should not have substituted her assessment regarding the continuity of postal services for that of ACM. The result of the ruling is that the transaction was implemented without a permit, which infringes the Dutch Competition Act. PostNL implemented the transaction at its own account and risk while the permit issued by the State Secretary was not yet final. Annulment of the permits by the Trade and Industrial Appeals Tribunal means that ACM should reverse the transaction and should impose sanctions on the parties involved.