NMa revises fine imposed on Broadcast and Nozema

The Netherlands Competition Authority (NMa) will refrain from fining Nozema Services N.V. (now acquired by KPN) and Broadcast NewCo Two B.V., following administrative appeals filed by the companies concerned. In 2005 the NMa fined these companies a total of more than EUR 1 million for entering into an agreement deciding who was to be granted the opportunity to supply broadcasting network services to the Holland Media Groep (HMG, now RTL Nederland). HMG had been allocated an ether frequency as part of the zero base project (a government scheme to auction off of commercial FM-radio frequencies in 2003).

The NMa is dropping the fines, as it has at present not been sufficiently established that the agreement between Nozema and Broadcast was restricting competition (or at least not in an appreciable way). This finding ties in with further developments in case law, showing that increasingly high requirements are being set on the standard of evidence in competition law cases. In this regard, further in-depth investigation into the economic and legal context would be necessary, taking into account the position of HMG especially, in order to establish the anti-competitive nature of the agreement between Broadcast and Nozema. It is highly doubtful whether such an in-depth investigation would yield viable results after so long a period of time.