NMa No Longer Suspects Waldeck of Abusing a Dominant Position

The Netherlands Competition Authority (NMa) has decided not to impose a sanction on Waldeck B.V., the parent company of Leidse Onderwijsinstellingen (LOI) and Studieplan. Waldeck has not abused a dominant position, according to NMa, in its decision following a report drawn up at the beginning of 2004. In this report, NMa expressed its suspicion that Waldeck had abused a dominant position through the low prices which its subsidiary, Studieplan, charged and by undercutting the prices of its competitor Nederlandse Handels Academie (NHA). With this decision, the preliminary interdict, which NMa imposed on Waldeck in August 2003 also lapses.

NMa suspected Waldeck of abusing a dominant position on the grounds of an investigation which started in August 2002. The reason for the investigation was a complaint from Waldeck's competitor Nationale Handels Academie (NHA). According to NHA, Waldeck attempted to drive NHA from the market by offering similar courses through Studieplan at loss-making prices. As a result, NHA was allegedly pushed to the brink of bankruptcy. After an initial assessment of the case, NMa saw cause to impose a provisional interdict on Waldeck which prohibited Waldeck from continuing this form of systematic underpricing through its subsidiary Studieplan. By means of this preliminary measure, NMa attempted to avoid a further deterioration in NHA's situation.

Following this preliminary measure, NMa issued a report on Waldeck in February 2004. In its present decision, NMa concludes that despite its earlier suspicions, it cannot be ascertained that Waldeck acted in contravention of the Competition Act by abusing a dominant position. The most important consideration in this regard is that Waldeck's market share is smaller than was originally supposed, because the size of the relevant market for private correspondence education in the Netherlands appeared to be larger than assumed at an earlier stage in the investigation. As a result it has not been possible to make a sufficiently plausible case that Waldeck had a dominant position on this market. If a dominant position does not exist, there can be no infringement of the prohibition on the abuse of such a position. In this case, the price war in which Studieplan became embroiled with NHA therefore does not contravene this prohibition. Furthermore, NMa concludes in its decision that even if Waldeck had had a dominant position, the case provided insufficient basis for determining thatStudieplan pursued a prohibited pricing strategy with so-called 'predatory pricing'.