Dutch municipality must include all costs in berth tariffs
The Netherlands Authority for Consumers and Markets (ACM) has established that the Dutch municipality of Cuijk (in the eastern part of the Netherlands) is competing unfairly by offering berths for free on its local lakes (Kraaijenbergse Plassen). As such, the municipality of Cuijk violates the Dutch law on competitive neutrality, the Dutch Act on Government and Free Markets. If the municipality wishes to continue offering berths on these lakes, it must include all costs in its prices.
Approximately 35 to 70 berths are located on the northern shores of the Kraaijenbergse Plassen. Recreational-boat owners are allowed to dock their boats for up to six days and nights. A former owner of one of the marinas on these lakes believes that the municipality competes unfairly by offering berths for free.
ACM’s assessment: offering berths for free constitutes an economic activity
ACM has established that offering berths on the Kraaijenbergse Plassen constitutes an economic activity. As a consequence, the municipality must include all costs in its tariffs.
According to ACM, offering berths is not a task that is typically associated with governments such as maintaining law and order. The municipality of Cuijk is obviously free to draw up rules for the use of its lakes. However, that does not necessarily mean that they have to offer berths themselves. After all, local businesses are able to do that, too. Anita Vegter, Member of the Board of ACM, explains: “There are also private marinas on the Kraaijenbergse Plassen, which also offer berths. These marinas do offer more facilities than the municipal berths, like showers and WIFI, but the core activity is the offering of berths. And the government is not allowed to compete unfairly with that activity.”
The Dutch Act on Government and Free Markets
The government is allowed to offer products and services on the market. However, it needs to comply with the rules when offering them. These rules are to protect businesses against unfair competition from the government. The Dutch law of competitive neutrality, the Dutch Act on Government and Free Markets, mandates, among other requirements, all municipalities to include all costs in their tariffs, when offering products and services on the market. This requirement does not apply to a municipality if it has established that the economic activities are services of general economic interest. In such a case, the Act will no longer apply. Businesses that are located on the Kraaijenbergse Plassen and that are financially harmed by the municipality’s offering of berths for free are able to use this ACM decision in any legal proceedings against the municipality.