On 26 February 2013, the Dutch Senate approved the establishment of the Netherlands Authority for Consumers and Markets (ACM). The new regulator will officially be launched on 1 April 2013.
What does this mean?
Three previous bodies, the Netherlands Competition Authority (NMA), the Netherlands Independent Post and Telecommunication Authority (OPTA) and the Netherlands Consumer Authority (CA) will merge to form a new umbrella regulator: the ACM.
Why is this necessary?
This new authority aims to allow for more efficient and effective supervision of the non-financial markets in the Netherlands, as well as enable a reduction in costs.
What are the consequences?
There will be quite a few internal and external changes. In principle, the ACM will assume the old authorities' legal responsibilities, but the old names will disappear and the division of tasks will be altered. Additionally, the ACM aims to approach cases in a multi-disciplinary way.
The ACM will consist of seven departments, including:
- Competition: the NMa will be incorporated into the Competition Department.
- Energy: the NMa's Office of Energy Regulation (Energiekamer) will be incorporated into the Energy Department. Regulation of the abuse of power in the energy sector will be relocated to the Energy Department. A remarkable change in regulating authority occurs on the energy market for consumers. The Consumer Department will be entirely responsible for the regulation of that market, whereas the regulation of abuse of power in the energy sector will be relocated to the Energy Department.
- Telecommunications, Transport & Postal Services: both the OPTA and the NMa's Office of Transport Regulation (Vervoerkamer) will become part of the Telecommunications, Transport and Postal Services Department.
- Consumer: the CA will be incorporated into the Consumer Department. This department will be authorized to impose: (i) a binding directive; (ii) additional rules and instructions to penalty payments and; (iii) a maximal financial penalty of €450,000.
The approval of the 'Act establishing the Netherlands Authority for Consumers and Markets' does not in itself explain what powers this new 'super-regulator' will have. Despite criticism, it has been decided that the three merging organizations will initially coexist. Their respective powers, instruments and procedures will be streamlined separately from the ACM establishment procedure. This will be prescribed by the 'Streamlining Act' and will include the harmonization (and possibly the extension) of powers. The ACM cannot 'really' come into force until this Act has been approved, and the legislative proposal is yet to be submitted to the House of Representatives. The intended effective date of the Streamlining Act is 1 January 2014, but its extensive and complex nature means a postponement should not be ruled out.
Regarding the intervening period, it's thought that the ACM's attention will increasingly be directed at the imposition of sanctions on de facto directors and parent companies, including minority shareholders (!). Furthermore, the ACM's director has stated that the ACM will come up with an increasing number of 'unusual actions': e.g. last year's campaign calling on consumers to consider switching power supplier.
CMS Derks Star Busmann
CMS Derks Star Busmann willingly advises on the consequences that the ACM's establishment has for your company.