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Blog Martijn Snoep: People are talking about us rather than to us

“But we aren’t allowed to do that according to ACM.” I regularly hear this comment when a company or a sector wants to do something new. Think of collaborations that can make a positive contribution to a public interest, such as sustainability, health care, or digital autonomy. When I subsequently ask around within ACM whether anyone has been contacted about that initiative, the answer is often no. Apparently, people are talking about us rather than to us. Which is a shame really, because there is usually a great deal of latitude, if the initiative benefits society. Businesses often have more opportunities than they and their advisors think.

Granted, ACM has to acknowledge some blame here. Until 20 years ago, give or take, it was common for businesses and their advisors to contact ACM’s predecessors with questions over the application of the rules. That took up a considerable share of our work. After a while, as a result of government cutbacks, a different view on the role of enforcement, and various developments within the EU, self-assessment became the new credo. Businesses were perfectly capable of finding out by themselves, together with their advisors, whether or not a specific initiative was allowed. General explanations of the rules were offered, yet the door remained shut for individual cases.

Now, there’s a lot to be said for that. The government has limited resources, and must use those resources where they are needed the most. Businesses get support from trade associations, and are able to hire specialist advisors. Why should Dutch taxpayers have to foot the bill for consulting services to businesses?

Yet, it will also result in many initiatives getting scrapped, including those that are potentially in the public interest, for example because some firms want to cover all conceivable legal risks beforehand or, in practice, run into conflicting rules, which are enforced by different regulators. And at the same time, the rules have, over the years, actually become more complex rather than simpler.

In short, it won’t surprise anyone that there is a case to be made for clarity from the regulator in individual cases, and that, in the absence of such clarity, initiatives that are in the public interest can fail. That is why, for quite a while now, ACM has communicated that it gladly offers that clarity if the initiative helps advance a public interest. The potential benefits to society justify the regulator going that extra mile. Think of increasing digital autonomy, where ACM sees scope for market participants to develop open standards or to procure IT services collectively. And for example the development of offshore wind parks: if two market participants wish to join forces in the construction of a park, we offer certainty relatively fast about whether or not they can do so and under what conditions. Our website already contains many such examples (in Dutch).

ACM offers that certainty through binding informal opinions, which are published (after redacting any business-confidential information) so that other businesses, too, can learn from them, and so that ACM gives account. The procedure for these informal opinions is also informal. Be sure to contact us in advance to discuss what information is needed for an informal opinion. Depending on the question and urgency, it can be completed within a couple of weeks. In addition, ACM is prepared to involve other regulators to prevent different opinions being handed down with conflicting outcomes.

So next time, come and start talking to us instead of talking about us.

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