Third quarterly report for 2007: extension of NMa powers

Over the past quarter, the Netherlands Competition Authority (NMa) has been preparing for new powers resulting from an amendment to the Competition Act. Its provisions will make it possible for the NMa to sanction individuals who have given instruction or exerted leadership with regard to infringements of the Competition Act. Besides, the Authority may enter private premises as part of forensic research activities. Accompanying rules for implementation are being finalised; they will be made available on the NMa's website shortly.

The NMa currently assesses business response to its new Draft Leniency Guidelines. These set out the conditions under which undertakings and individuals who have participated in cartels may be eligible for a fine reduction or immunity. The new Leniency Guidelines will shortly be published on the NMa website. Over 2007, the NMa has up until now received 14 leniency application.

In the third quarter of 2007, the NMa received 26 notifications of a proposed merger or acquisition; it adopted 22 clearance decisions. An in-depth, second phase investigation was required in two cases involving mental healthcare mergers, in the region of Overijssel and Amsterdam. The merger between health insurance companies Achmea and Agis and the acquisition of Delta Lloyd healthcare services by health insurance company CZ was cleared. Also, the NMa approved of the merger between the Gemini Ziekenhuis in Den Helder and the Medisch Centrum Alkmaar. Furthermore, it cleared RTL's acquisition of Radio 538 and a number of Talpa's television broadcasting activities. Following an in-depth investigation, the NMa gave the green light to the merger between the floral auctions Bloemenveiling Aalsmeer and Bloemenveiling FloraHolland.

Shortly after notifying the NMa of proposed merger plans, the newspaper publishing firms Noordelijke Dagbladcombinatie and PCM withdraw their merger notification. Likewise, Nuon and Essent withdrew their notification of a proposed merger, causing the NMa to drop its in-depth investigation into the effects of this concentration.

Over the past three months, the NMa mounted three 'dawn raids' on companies in the healthcare sector. On one occasion, it was found that seals, affixed to a door the previous night, had been broken. The NMa reported the incident to the police. The NMa seals off premises when an investigation, involving a search for evidence of infringement of the Competition Act, needs to be continued at a particular location. In another case, the NMa imposed a fine of EUR 10,000 on an individual for non-cooperation in a cartel investigation.

As regards 'Network sectors and Media', one of the NMa's prioritised fields of investigation, the NMa concluded that the cable television companies UPC, Essent Kablecom and Casema Multikabel did not abuse a dominant position. The investigation followed a complaint submitted by KPN. Apple also did not abuse a dominant position by tying the sale of its portable music player iPod to services provided by its online music store iTunes, according to the NMa.
At the end of August, the NMa received signals that the home property market in Amsterdam had been more or less closed off to individuals not employing the intermediary services of an estate agent. The NMa called on aggrieved buyers and estate agents to pass on relevant information, on the basis of which it may decide whether or not to commence an investigation.

The NMa has closed its investigation into possible anti-competitive practices in the security services sector. The investigation did not yield any concrete evidence of infringement of the Competition Act.

Following administrative appeal procedures, lodged by the companies concerned, the NMa has refrained from sanctioning Nozema Services N.V. en Broadcast NewCo Two B.V. In 2005, fines imposed on these companies by the NMa were in excess of EUR 1 million. The case centred on a bid-rigging agreement determining which of the two companies was to be granted the opportunity to supply broadcasting network services to Holland Media Groep. The deal involved commercial FM programming on ether frequencies. The revision on appeal found that, in view of further developments in case law, it had as yet not been sufficiently established that the agreement between Nozema and Broadcast had (appreciably) restricted competition.

In July, the District Court of Rotterdam issued its ruling on the case involving bicycle manufacturers. Concerted practices were confirmed with regard to the increase in recommended consumer prices and payment rebates. The Court established that concerted practices with regard to the maximum margin allowed to suppliers of company bicycles were to be dismissed on grounds of insufficient evidence. Furthermore, the Court ruled that remaining infringements were of a less serious nature than previously established by the NMa. The Court lowered the NMa's fines imposed on the three bicycle manufacturers concerned. The Authority has appealed the ruling at the Trade and Industry Appeals Tribunal [College van Beroep voor het Bedrijfsleven (CBb)].

The Office of Transport Regulation (DTe), the NMa division regulating the energy market, has set out its plans for tightening the regulatory frameworks for electricity and gas network operators over the period 2008-2010. These regulatory frameworks provide the point of departure for the NMa's annual fixing of end user tariffs for electricity and gas transmission. Also, DTe found that energy bills too often prove incorrect and that consumers prove incapable of checking energy bills themselves. As from now, the NMa will therefore verify the correctness as well as the timeliness of bills. NMa Scorecards available on www.consuwijzer.nl show that many energy companies, meanwhile, send out their bills on time (within a period of two months).

On 1 November at the latest, the NMa will assess the tariffs proposed by Schiphol, that are to be imposed on aviation activities as from that date. Such tariffs include landing rights and tariffs for passenger and luggage handling. The NMa will make an assessment on the basis of research carried out by the Office of Transport Regulation (OTR), following three requests received over the past quarter. In addition, OTR has mediated in a dispute between railway network operator ProRail and freight transport company ACTS, relating to ProRail's intention to close off part of the track in order carry out maintenance work. As a result, the transport company would temporarily be unable to use certain 'train paths', as confirmed by agreement with ProRail. The dispute was resolved through mediation.