Dutch ACM Publishes Annual Report over 2019 in Times of Covid-19
On 19 March 2019, the Dutch Authority for Consumers & Markets (ACM) published its Annual Report over 2019. The report’s publication is overshadowed by the corona virus crisis, which has already led the ACM’s chairman, Mr. Martijn Snoep, to announce that in the coming period the ACM’s competition law enforcement policy may become more flexible in certain areas.
According to the ACM in its 2019 Annual Report, the highlights in the area of competition law enforcement in 2019 were the following:
- An (ongoing) investigation into bid-rigging agreements in the civil engineering sector relating to various tenders by the municipality of Amsterdam;
- An investigation into possible abuse of a dominant position by Apple with regard to its App Store;
- The imposition of commitments on One Media Sales relating to the cease of certain discounting practices with regard to the sale of online radio advertising space;
- The imposition of a fine on a company because its employees had deleted WhatsApp messages during a dawn raid;
- The imposition of a behavioural remedy (proving non-discriminatory access to an online infrastructure) in exchange for the approval of the acquisition of educational distributor Iddink by educational publisher Sanoma Learning;
- The prohibition of the proposed acquisition of postal service company Sandd by its much larger and only competitor PostNL (which was subsequently overturned by the Deputy Minister of Economic Affairs for reasons of public interest).
All these aforementioned cases are discussed in more detail in Loyens & Loeff’s own annual overview of Competition Law in the Netherlands in 2019.
All of these events took place before the current corona virus crisis emerged. Today’s world is a very different one from that of less than three months ago. This is illustrated by an interview that the ACM’s chairman, Martijn Snoep, gave to the Dutch financial newspaper Het Financieele Dagblad on the day that the Annual Report was published. Says Mr. Snoep: ‘These are special circumstances which ask for special solutions. This is not a normal time. (…) But don’t go any further than necessary to ward off the crisis.’ As examples of behaviour that should be allowed in times of crisis, Mr. Snoep mentions supermarkets informing each other on their available stocks, logistic service providers cooperating to ensure that foodstuffs can reach the population, entire economic sectors agreeing on leniency towards debtors and pharmaceutical wholesalers informing each other of their sales.
In normal circumstances, the ACM would act against such practices. However, in view of the corona virus pandemic, the ACM will take into account that companies currently encounter many difficulties. The ACM believes it important that companies can survive the crisis rather than disappearing completely. The latter would eventually be detrimental to competition.
As of this week, the Competition Team of Loyens & Loeff intends to launch a two-daily blog setting out the possibilities under competition in the current crisis for various specific sectors.