Antitrust Alert: The Netherlands Launches New Consumer and Market Authority – the New Dutch Super Regulator
The Netherlands launches its new Consumer and Market Authority (Autoriteit Consument en Markt ("ACM")) on 1 April 2013.
The ACM combines and replaces three previous authorities: the Dutch Competition Authority (Nederlandse Mededingingsautoriteit ("NMa")), the Consumer Authority (Consumentenautoriteit ("CA")), and the Independent Post and Telecommunications Authority (Onafhankelijke Post en Telecommunicatie Autoriteit ("OPTA")). The organization, procedures, and powers of the new regulator will be set out in detail in a law currently under preparation, which is expected to become effective on 1 January 2014. Until then, the ACM will operate on the basis of the original individual mandates of the three now-merged entities.
According to the government, the new regulator is intended to achieve not only cost savings, but also greater efficiency in market regulation, a strengthened body of expertise and information flow, faster intervention in the face of changing market circumstances, reduced regulatory burdens on market participants, and a closer proximity between market regulation and consumers. While these are commendable objectives, the potential risks of creating a regulator with such broad-ranging powers cannot be overlooked.
Structure and functioning
The new entity combines three relatively distinct authorities: (i) The NMa, the former competition enforcement authority, fulfilled the main task of identifying and sanctioning anticompetitive behavior across all sectors. It also exercised specific oversight in the areas of transport and energy. (ii) The CA, the consumer protection authority, ensured compliance with consumer protection law. (iii) The OPTA served as a sector regulator, with wide-ranging ex ante powers, in charge of achieving the industrial policy objectives set forth in the EU and national regulatory frameworks in the electronic communications and postal sectors.
In practice, the ACM will continue to broadly work along these functional lines, with its three pillars (and six departments or "directorates") corresponding to competencies of the three former authorities. Enhancing cross-pillar activity is nevertheless one of the ACM’s goals and represents one of its main innovations – the creation of cross-pillar competencies among the different directorates. In particular, as concerns consumer protection, one directorate will deal with all consumer issues, including those arising in the context of the sector-specific and the competition pillars. However, the importance given to consumer empowerment under this new authority also raises potential concerns. Short-term consumer protection goals should not trump longer-term structural and industrial policy objectives. Therefore, it is key that the ACM remains sufficiently independent of the influence of political decisionmakers.
As concerns sector-specific areas, the former OPTA portfolio is now assumed by a sector-specific pillar composed of two directorates for (i) energy and (ii) postal and telecommunications services.
The competition pillar will take over the tasks of the former NMa, with the exception of energy and transport matters, for which the sector-specific directorate and the chamber for transport will apply competition rules themselves.
Despite the ACM's broad scope, a number of administrative bodies remain separate from the merged entity, such as the investigatory departments in the areas of media, healthcare, and gambling.
Combining the three regulators does not create any substantially new powers. However, by extending existing powers across the ACM, this does in some instances increase the powers of some of its pillars. For example, unlike the former OPTA and CA, the former NMa was not allowed to share information with the tax authorities. Furthermore, the new authority is entitled to freely share any information internally, regardless of the basis upon which such information was acquired. Hence, information obtained in the context of a market inquiry in the telecommunications sector, for example, can later be used in conducting a cartel investigation. The ACM may also share information more widely with foreign market regulators.
The new regulator is unlikely to substantially affect enforcement practice in the Netherlands. For companies, the merger of the three entities is likely to slightly alleviate regulatory burdens by creating a single body for most sectors of the Dutch economy. The ACM should also improve the sectoral expertise of competition enforcers. On the other hand, concerns over the use and potential abuse of information gathered using different legal bases and shared amongst the three pillars, and the question of ensuring the new regulator’s independence, are likely to spark conflicting views in the foreseeable future.
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