ACM will take action against municipalities that compete unfairly with the recreation sector
The Netherlands Authority for Consumers and Markets (ACM) will take action against municipalities that compete unfairly with private businesses in the recreation sector. ACM will thus enforce the Dutch Act on Government and Free Markets, which came into full force on July 1, 2014. The aim of this act on competitive neutrality is the prevention of unfair competition between government-owned businesses and private businesses, for example, because government-owned businesses do not include all costs in their tariffs. ACM will take action against municipalities that do not play by the rules.
Indications
ACM regularly receives indications from businesses that are facing unfair competition from commercial activities of municipalities in the recreation sector. For example, businesses have informed ACM about the commercial exploitation of marinas berths and RV parks (or motorhome campsites) by municipalities, among other activities. The Dutch Act on Government and Free Markets mandates municipalities to include all costs in their tariffs, unless they have officially decided that the activities in question are public interests.
ACM has established that municipalities base the tariffs of marina berths merely on a comparison with the tariffs of nearby marinas or that they do not charge anything for RV parking spots.
Violation by municipality in central Netherlands
Based on research of its own, ACM has determined that the municipality of Zeewolde in central Netherlands does not include all costs in the tariffs for berths in its marina. Zeewolde thus distorts competition with other marinas. In connection with this violation, ACM issued a so-called declaratory judgment (in Dutch: Verklaring Voor Recht). ACM is unable to impose fines for violations of the Act on Government and Free Markets. Injured parties are able to use such declaratory judgments in lawsuits in order to claim damages.
Public interests
The Act on Government and Free Markets does not apply to activities that municipalities have designated as public interests. ACM has established that a lot of municipalities believe that their activities in the recreation sector should be considered public interests. Municipal councils are able to make this official by passing so-called public-interest resolutions (in Dutch: algemeen belang besluit). The municipal council of Zeewolde passed such a resolution regarding the commercial exploitation of its marina. It did so after ACM had established the violation. As a result, the violation has ended. Anita Vegter, Member of the Board of ACM, adds: “I have observed that many municipalities pass public-interest motions regarding their commercial activities in the recreation sector. This is allowed, but it does reduce the law’s effectiveness.”