NMa publishes revised procedures in relation to concentration cases

The Netherlands Competition Authority (NMa) has decided to revise its Procedures in Relation to Concentration Cases as a result of the October 2007 revision of the Dutch Competition Act. These procedures only apply to concentration cases in which the NMa assesses whether effective competition is impeded, particularly as a result of the creation or strengthening of a dominant position.

Remedies and suspension of term limits
The revised procedures include the option for parties to suspend until further notice the four-week term limit in the notification phase. Furthermore, parties now also have the option to submit remedies in the notification phase.

Public Access to Government Information Act (WOB) is applicable
Another amendment to the procedures has been the result of a February 2007 ruling of the Council of State that declared the Dutch Public Access to Government Information Act (WOB) applicable to the NMa's enforcement activities in the context of the Dutch Competition Act. The procedures provide guidelines on how the NMa deals with WOB-requests in concentration cases. In this regard, it is important to note that the NMa turns down requests that have been submitted during the notification or licensing phases. This is because it is essential that, in a relatively short amount of time, the NMa is able to reach balanced and careful decisions, while properly safeguarding the interests of all parties involved during the process. When the investigation has been completed and a decision has been made, the applicant can subsequently submit another WOB-request. In that case, a ruling on the merits of the application will follow.

Other amendments
In addition to the abovementioned amendments, all informal opinions in concentration cases will now in principle be published. This used not to be the case. The revised procedures also reflect the amendments that were made in September 2008 to the decision on Issuance of short-form decisions in concentration cases. That decision means that the NMa can finalize more concentration cases in which it issues a short-form decision (meaning without publishing the reasons in detail), where the market shares of the undertakings that intend to merge no longer count as the sole criterium.

Media concentrations
Finally, the procedures deal with media concentrations under the Interim Act on Media Concentrations (Twm), which came into effect in June 2007. Next to assessing whether such a concentration requires a license, the NMa will also rule in the notification phase on whether the media concentration is permitted by the Twm. The NMa will ask the Dutch Media Authority [Commissariaat voor de Media] for advice under the Twm, before it renders a decision.

These procedures have not been set up with the intention to fix or formalize current practice. These procedures merely reflect it. They can thus be amended in the future when views or circumstances change. As of today, the revised procedures in relation to concentration cases (in Dutch) can downloaded from the NMa's website (www.acm.nl. An English version of the revised procedures will follow.