On 7 January 2014, the Dutch competition authority (the Authority for Consumers and Markets (ACM)) closed an antitrust probe against the three major mobile operators in the Netherlands: KPN, Vodafone and T-Mobile. ACM did not formally find that the companies had committed antitrust infringements, but it did identify potential antitrust risks arising out of the mobile operators’ common practice of making public statements about their future market behaviour.
The statements, which centred around planned pricing policy or other commercial conditions, were made in public by employees of these companies (for example, at conferences or in trade journals) even before an internal decision was taken by the companies. ACM was concerned that such statements could significantly reduce the uncertainty about competitors’ behaviour, which should characterize competitive markets. If followed by competitors, such public statements could therefore lead to collusion among the mobile providers and harm consumers. ACM decided to close the case when KPN, Vodafone and T-Mobile offered commitments in November last year (See European Competition Law Newsletter – December 2013), but the details of the case have only now been made public.
The three major mobile operators will refrain from making verbal or written statements in the public domain about future prices or other commercial conditions before an internal decision on such plans is taken within their companies. KPN, Vodafone and T-Mobile also committed to include this obligation in their compliance programmes and to organize staff training so that these commitments are complied with.
Concerns about public statements on future market behaviour (particularly a pre-announcement without a commitment to implement) are not specific to the mobile telecommunications sector. As the ACM made clear, the issues in this case are directly relevant to other industries. This case (as well as other cases at the EU and national levels) demonstrates that companies should bear these issues in mind when devising and implementing their compliance programmes and antitrust audits.