On 1 August 2014, the "Streamlining Act" (Stroomlijningswet), which seeks to harmonise the powers of the Dutch Authority for Consumers and Markets ("ACM"), entered into force. This is the second legislative step in merging the three former Dutch regulators NMa (the competition authority), OPTA (the post and telecoms authority), and the Consumer Authority. While the "Establishing Act" (Instellingswet) of February 2013 mainly provided for technical changes in the Competition Act, the Streamlining Act includes a number of changes as to the ACM's enforcement powers.
Most of these changes relate to the extension of competences or procedural rules that previously only applied to competition law enforcement. For instance, legal professional privilege of correspondence exchanged between a company and its lawyer has now been extended to all the ACM activities. However, the Streamlining Act also introduces some relevant changes for competition law practice.
As of 1 August 2014, the worldwide turnover threshold for merger notifications to the ACM has been raised from EUR 113.45 million to EUR 150 million. The national turnover threshold remains EUR 30 million. As a consequence, the Dutch merger control thresholds are now as follows: the combined worldwide turnover of at least two undertakings concerned exceeded EUR 150 million in the preceding financial year and the domestic turnover of each of at least two of the undertakings concerned was EUR 30 million or more. For insurance companies, the threshold consists of the value of the gross contributions written in the preceding financial year, of which now at least EUR 30 million has to be received from Dutch residents. The same applies to pension funds.
Furthermore, the Streamlining Act limits the right to remain silent solely to current employees of the undertaking that is subject of a competition law investigation. This amendment is contrary to an earlier ruling by the Dutch Trade and Industry Appeals Tribunal ("CBb" 21 December 2012, NL:CBB:2012:BY7031 and NL:CBB:2012:BY7026 in which it was established that former employees are also entitled to invoke the derivative right to remain silent. Former employees can nevertheless still rely on their personal right to remain silent when they are requested to provide information about their own conduct.
The Streamlining Act also introduces a wide obligation on every person or undertaking to provide information to the ACM, if this is reasonably necessary for the ACM to perform its tasks. The latter implies the ACM can now also retrieve information for market analyses and reports. The ACM can impose a maximum fine of EUR 450,000 or 1% of the company's turnover for failure to comply with an information request. When providing information to the ACM, companies should realise this information can be exchanged between the various divisions within the ACM, as provided for by the Establishing Act last year.
Finally, it is interesting to note that when a fining decision relates to a very serious infringement, such as an infringement of the cartel prohibition, the ACM is now under a statutory duty to publish the entire decision, with the exception of confidential business information. However, the ACM has to wait ten working days, in order to allow the parties concerned to ask for interim measures.
On 1 August 2014, the new fining policy rules for the imposition of fines by the ACM also entered into force. The "Fining policy rule ACM 2014" (Boetebeleidsregel ACM 2014) and "Policy rule Leniency" (Beleidsregel Clementie) do not contain any substantial changes. Under the new leniency rules, the first leniency applicant that meets the applicable criteria is now always granted a 100% reduction of the fine. Furthermore, for leniency applicants that are not eligible for immunity, three new reduction categories have been introduced: 30-50%, 20-30% and ≤ 20%. The Dutch government is still working on legislation to enable the ACM to impose higher fines than the current statutory maximum. In July the Ministry of Economic Affairs started a public consultation on draft legislation.