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The Art of Supervision The Art of Supervision Liber amicorum Pieter Kalbfleisch EDITORS Henk Don Jaap de Keijzer Esther Lamboo Monique van Oers Jarig van Sinderen Cover design: Bottenheft, Marijenkampen/Arnhem Production: Editor Ronald Kouwenhoven, Rotterdam Contents Introduction by the editors: The art of supervision 9 1 The art of supervision 23 The role of the competition authority in policy debate and public society Philip Collins 25 1 COMMENT: Hans Vijlbrief 33 2 COMMENT: Hans Hoogervorst 35 The art of enforcement: Cooperation with other institutions, a national competition authority’s perspective Pablo Amador Sánchez, Gerard Bakker, Aad Kleijweg 39 1 COMMENT: Alexander Italianer 49 2 COMMENT: Jacques Steenbergen 51 2 Public interest 55 The political economy of deregulation Paul W.J. de Bijl and Coen Teulings 57 1 COMMENT: Chris Buijink 65 2 COMMENT: Bernard Wientjes 67 Public interests! What public interests? And how to deal with them? Henk Don 73 1 COMMENT: Elco Brinkman 80 2 COMMENT: Chris Fonteijn 83 3 Competition policy in an international setting 87 Private enforcement and public enforcement of EU antitrust law Philip Lowe and Rainer Becker 89 1 COMMENT: Floris O.W. Vogelaar 96 2 COMMENT: René Smits 101 Meeting China’s competition Peter van Bergeijk and Pierrette Gaasbeek 107 1 COMMENT: Carl Baudenbacher 120 2 COMMENT: Peter Freeman 124 4 Competition and the courts 129 The courts and the art of concentration Monique T.P.J. Van Oers and Anke S.M.L. Prompers 131 1 COMMENT: Erik van den Emster 144 2 COMMENT: Mark B.W. Biesheuvel 146 The role of economics and economists in the Court Berend Jan Drijber 151 1 COMMENT: Annetje Ottow and Loes Brekhof 158 2 COMMENT: Esther Lamboo and Milou Dijkman 160 5 Instruments of competition policy and regulation 167 What rate of return to allow? Do we truly understand it? Arnoud W.A. Boot and Jeroen Ligterink 169 1 COMMENT: Winfred Knibbeler 182 2 COMMENT: Peter Plug, Machiel Mulder and Luuk Spee 185 Are cost-benefit analyses a tool for decision-making between free competition and regulation? Jaap de Keijzer 191 1 COMMENT: Maarten Pieter Schinkel 200 2 COMMENT: Cathy van Beek and Rein Halbersma 203 6 Competition and moral sentiments 209 Competition vs. cooperation: Between the devil and the deep blue sea Tom R. Ottervanger 211 1 COMMENT: Kees Hellingman 219 2 COMMENT: M.R. Mok 221 Consumer welfare versus sustainability in competition policy Johan Graafland 225 1 COMMENT: Nout Wellink 234 7 Competition and art 243 La maladie imaginaire Jules Theeuwes 245 1 COMMENT: René Jansen 253 2 COMMENT: Paul Glazener 255 Are less government support and more competition a threat to diversity in the supply of arts? Barbara Baarsma 259 1 COMMENT: Weijer VerLoren van Themaat 270 2 COMMENT: Tjark Tjin-a-Tsoi 273 8 Competition and sports 277 Competition and the influence on the professional football league of local government support Rein Wesseling 279 1 COMMENT: Piet Jan Slot 285 2 COMMENT: Ewoud Sakkers 288 The impact on competition of sponsoring of the football league and exclusive media rights Jarig van Sinderen and Rob Vossen 293 1 COMMENT: Christof R.A. Swaak 304 2 COMMENT: Gerard van der Wal 306 The authors 313 Curriculum vitae Pieter Kalbfleisch 319 THE ART OF SUPERVISION The Art of Supervision Ars longa, vita brevis, occasio praeceps, experimentum periculosum, iudicium difficile. The full text is often rendered in English as: Art is long, life is short, opportunity fleeting, experiment dangerous, judgment difficult. Introduction What is typical of the way in which Pieter Kalbfleisch has led the Netherlands Competition Authority (NMa) over the past eight years is the fact that he regards supervision of competition as an art. As the Latin translation of Hippo- Wcrates’ famous saying imparts, this art will survive long after the drudgery of the everyday is gone. Ars longa vita brevis is a Latin translation of the original Greek text which in fact gives more the sense that the speaker was not referring to the fine arts, but rather to the art of living. Apart from the fact that supervision is a craft, it also involves difficult judgments: iudicium difficile. For Pieter, a number of starting points are important with regard to his work for the NMa, specifically 1) the enforcement of the Competition Act and 2) the optimal regulation of the energy and transport sector, taking into account the public interests and economic arguments. Decisions must, in his view, be properly substantiated (in both economic and legal terms) and the broadly defined consumer welfare must play a leading role. Under his leadership of the NMa, the Office of the Chief Economist was set up, merger control and competition enforcement were forged to- gether in a new department, the Competition Department (DM), and the regulatory offices were merged to create the Department of Energy and Transport Regulation (DREV). Since his appointment, the NMa has pub- INTRODUCTION BY THE EDITORS lished annually the yields of competition enforcement, merger control and sectoral regulation estimated in money terms: the outcome. At the same time Pieter believes international cooperation is a must in order to learn from and emulate others. He has always been very active interna- tionally and made great efforts to bring the International Competition Network’s 2011 conference to the Netherlands in honour of the network’s 10-year anniversary. Pieter’s social commitment is evidenced by his activities for the Residentie Orkest (The Hague Philharmonic Orchestra) and his interest in sports in general and football in particular. The editors tried to ensure that all these facets of Pieter are expressed in this book. That is why both national and international colleagues and friends were invited to contribute to this Liber Amicorum. Attention is also devoted to themes that are not often addressed in the competition literature. There is discussion of competition and art and competition and solidarity, for instance. The Liber Amicorum is organised into eight themes, which we feel do justice to the aforementioned variety of Pieter’s interests. Two subthemes are discussed and commented on per theme by two authors. The first theme is mentioned in the title of the book: The Art of Super- vision. Philip Collins says: “the central role of a competition authority is putting the consumer interest at the heart of its work. The role of an authority goes further than enforcer of the competition law against private businesses but also as an advocate of the benefits of competition and of well-functioning markets.” He also argues that those activities with the biggest infringement should be prioritised. He opts for an authority that is socially engaged, emanates independence and remains impartial and accountable. The commentators on this piece, Hans Vijlbrief and Hans Hoogervorst agree that the NMa is “indisputably an independent agency”. The line between ‘competition policy’ and ‘competition enforcement’ con- tinues to be a source of discussion, according to Vijlbrief. Hoogervorst thinks enforcement is important but also argues for a strong advocacy role. It can be important in this respect to periodically conduct and com- municate a risk analysis. Pablo Amador Sanchez, Gerard Bakker and Aad Kleijweg write about cooperation with other institutes. Cooperation can serve the public inter- est well. Cartels are still detected mainly because there are ‘whistle- blowers’ and leniency programmes. In future the cooperation with national and international institutions to obtain tip-offs on suspected anti- competitive behaviour will become increasingly important however. As an 10 THE ART OF SUPERVISION example of national cooperation the authors cite the relationship with the FIOD in investigating construction industry cartel cases (false invoices; telephone taps). The international cooperation with other authorities, such as the German, Danish and the Belgian authorities in the case of the shrimp fishers and in the flour cartel case, also makes it clear that this kind of cooperation is developing positively. The authors point out that regular meetings are important in this cooperation: “face to face contact is necessary”. In their commentaries, Alexander Italianer and Jacques Steenbergen primarily discuss the role that Pieter Kalbfleisch played in this international cooperation. Under his leadership, the NMa has become increasingly active in working groups in the European and International Network of Competition Authorities (the ECN and ICN, respectively). This international orientation ultimately resulted in the NMa’s organisation of the 10th ICN Annual Conference in 2011. Steenbergen also emphasises the good cooperation between the Belgian competition authority and the NMa, as stated in the main article. The second theme of the book goes into the public interests in more depth. Coen Teulings and Paul de Bijl write about ‘The political economy of deregulation’. They discuss how the public interest in regulatory reform can be managed in the face of vested interests or high transaction costs. One theoretical model shows how product market deregulation can sup- port labour market reform. A second model illustrates that a properly functioning financial market is important for the acceptance of product market deregulation. If inefficient companies cannot be easily taken over by more efficient ones after deregulation, this will complicate deregula- tion. Chris Buijink emphasises in his comments that in the case of reforms that “will raise welfare standards for society as a whole, but may have a negative effect on certain groups, all the interests must be taken into account, particularly during the transition period.” Bernhard Wientjes stresses that further reforms of markets are necessary to in- crease productivity growth. The warnings and advice from Teulings and De Bijl can further support the implementation of such a process. Henk Don claims that, in principle, the legal framework allows all public interests to be taken into account in competition cases.
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