Netherlands: United We Stand: A Merger Of Three Regulators

In 2013, the NMa is scheduled to merge with the Independent Post and Telecommunications Authority (OPTA) and the Consumer Authority (CA) to create a single "lean and mean" regulator, to be headed by the new NMa chairman Chris Fonteijn.¹ The three authorities currently cooperate on the basis of "cooperation protocols". Lately, cooperation seems to be a hot topic with the NMa and the European Commission.

According to the Minister of Economic Affairs, Agriculture and Innovation, the combining of sector specific regulation, competition enforcement and consumer protection into a single regulator will result in synergies and will be cost-efficient. Increasing internationalisation and (technological) developments require intensified cooperation between the three regulatory authorities, with supervisory tasks lying on partly the same (sub)markets.² The merger's estimated cost savings of approximately EUR 7 million is an added bonus, which fits well with the Dutch government's intended budget cuts. The Lower House's opposition, however, fears these cost savings are the actual reason for the intended merger and that effective enforcement may be lost in the broader organisation.³ A scenario which appears not unlikely, given the NMa's recent admission in the press to struggle with capacity problems.⁴

Ever closer cooperation seems to be a hot topic lately. The NMa chose "cooperation" as a theme for its 2010 Annual Report, which states "the NMa more than ever reaped the benefits of cooperation, not just cooperation within the organization between the general competition oversight and industry-specific oversight departments, but also with other authorities and regulators, both domestic and abroad".⁵ Even recently the NMa is "reaping benefits", as the Fiscal Intelligence and Information Service provided the NMa with cartel-related information found during an investigation, which led to the NMa investigating a potential real estate trading cartel.⁶ However, the NMa finds there is still room for improvement: it has indicated to favour increased information exchange among regulators at national as well as international level⁷ by removing the statutory restrictions in the Dutch Competition Act preventing it from passing on information about activities falling under the supervision of other authorities.

The European Commission also seems to support increased cooperation among competition authorities. Apart from cooperating with the EU national competition authorities through the European Competition Network, it is looking at new ways to increase cooperation among national competition authorities in the merger control field. On 27 May 2011, a public consultation was launched on best practices for cooperation among EU national competition authorities to facilitate information-sharing for mergers which are not subject to EU merger control, but which require clearance in several Member States.⁸ Additionally, the NMa's acting chairman, Henk Don, underlined the importance of the international competition network for a fast exchange of information in the event of cross-border cartels at the ICN's Annual Conference.⁹

Footnotes

1. Chris Fonteijn became the chairman of the NMa board on 1 July 2011 and will also become the chairman of the new regulatory authority after the merger of the three regulators. Mr. Fonteijn previously was the chairman of the Commission of OPTA. See the NMa's press release of 24 June 2011.

2. Letter by the Minister of Economic Affairs, Agriculture and Innovation to the Second Chamber of
28 March 2011.

3. Het Financieele Dagblad, Oppositie vreest voor kwaliteit van toezicht of 8 June 2011.

4. De Pers, Kartelwaakhond grijpt ook naast de shampoo of 15 June 2011. According to the NMa's spokesperson, the NMa's extended powers as a result of the 2007 amendments to the Competition Act have led to more tasks but not to more personnel and thus to capacity problems.

5. NMa's 2010 Annual Report, p. 5.

6. See NMa press release of 28 April 2011.

7. See NMa press release of 21 April 2011.

8. Draft Best Practices on cooperation between EU national competition authorities in merger review, 27 May 2011.

9. See NMa press release of 17 May 2011.

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