Annual Report of Nma and Dte for 2001 Netherlands Competition Authority
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Annual Report of NMa and DTe for 2001 Netherlands Competition Authority Annual Report of NMa and DTe for 2001 Foreword 5 2 General Competition Regulation 22 2.1 Introduction 23 1 Central Issues in 2001 8 2.2 Dominant positions 23 1.1 Introduction 9 2.2.1 Report on Schiphol’s tariffs 23 1.2 Activities in 2001 9 2.2.2 Advice with regard to the Access to 1.2.1 Important activities 9 the Cable Bill [Wetsvoorstel Toegang 1.2.2 Tailor-made interventions 11 tot de kabel] 24 1.2.3 Guidelines 12 2.2.3 Joint dominant position 24 1.2.4 Emphasis on communication 12 2.2.4 High market shares from a different 1.2.5 Attention to non-economic interests 13 perspective 25 1.2.6Strengthening of European cooperation2.3 13 Investigations into cartels 26 1.2.7 Task-oriented organisation 13 2.3.1 Investigation of the petrol market 26 1.3 Outlook 14 2.3.1a Investigation of petrol companies 26 1.3.1 Development of activities 14 2.3.1b Report on Texaco in the case involving 1.3.2 Consultation and accountability 16 Tango 28 1.3.3 Development of the organisation 16 2.3.2 UMTS auction 28 1.3.4 Evaluation of the Competition Act, 2.3.3 Hairdressers 29 Electricity Act of 1998 and the Gas Act 17 2.3.4 Construction sector 29 2.4 Assessment of applications for exemption 30 2.4.1 Claims management 30 On the Visible Contours of the Competition 2.4.2 Financial sector 31 Act and NMa 18 2.5 Competition and other interests 31 2.5.1 Competition and healthcare 32 2.5.1a Contracts between healthcare providers and health insurance funds 32 2.5.1b Formularies 32 2.5.2 Competition and conditions of employment 33 2.5.3 Competition and the environment 33 2.6Concentration control 33 2.6.1 Increasing turnover thresholds 33 2.6.2 Attributing market shares to joint undertakings 34 2.6.3 Remedies 34 2.7 Sanctions 36 2.7.1 Procedure 36 2.7.2 Fines 37 2.8 Guidelines 37 2.8.1 Guidelines for Cooperation between Companies 37 2.8.2 Price Squeeze Guidelines 38 2.8.3 Guidelines for the Setting of Fines 38 2.8.4 Cooperation UMTS 39 2.9 Legal aspects 40 2.9.1 Public access to information 40 2.9.2 Administrative appeals 41 2.9.3 Administrative appeals procedure under the Competition Act 41 2.9.4 Court rulings 42 2 Annual Report NMa 2001 - Contents 2.10 NMa in Europe 43 4 The Year 2001 in Figures 66 2.10.1 Modernisation: proposal for 4.1 Introduction 67 a Council directive 43 4.2 Concentration control 67 2.10.2 Review of the Green Book on 4.3 Concentration supervision 68 the Concentration Directive 43 4.3.1 Exemptions under the transitional regime 69 2.10.3 De minimis 44 4.3.2 Regular applications for exemption 69 2.10.4 Leniency Notice 44 4.3.3 Complaints 70 2.10.5 Block exemption for motor vehicles 44 4.3.4 Orientations 70 2.10.6Evaluation report on technology transfer 45 4.3.5 Ex officio investigations 71 2.10.7 Contribution to the advisory committees 4.3.6EC verifications 71 for cartel and concentration cases 45 4.3.7 Subsequent verifications 71 2.10.8 General committees and working groups4.4 45 Administrative appeals 71 2.10.9 Assistance for the Director-General for 4.5 Judicial appeals and petitions for injunctions 72 Competition and in relation to 4.6Decisions in relation to sanctions 72 verifications involving Dutch companies 454.7 Decisions in relation to the Electricity Act 2.10.10 Other European contacts 46 of 1998 and the Gas Act 72 2.10.11 Other international contacts 47 4.8 Communication 73 Interview with Dr. Ulf Böge 49 Interview with Prof. David Newbery 75 3 Sector-Specific Regulation 52 5 The Organisation 78 3.1 Introduction 53 5.1 Personnel 79 3.2 Office for Energy Regulation and its environment 53 5.1.1 Staffing 79 3.2.1 Tasks 53 5.1.2 Recruitment and selection 79 3.2.2 Customer satisfaction survey 53 5.1.3 Education and training 79 3.2.3 Relationship with the Minister of 5.2 Finance 79 Economic Affairs 54 5.3 Information management and administration 80 3.3 DTe’s activities 54 5.4 Ratios (‘Balanced Scorecard’) 80 3.3.1 Privatisation 54 5.5 Changes to the organisation 81 3.3.2 Market Surveillance Committee 55 5.5.1 New organisation of DTe 81 3.3.3 Rules for the gas market 55 5.5.2 Changes to the organisation of the 3.3.4 Freedom of choice? 56 Legal Department 82 3.3.5 Development of tariffs 57 5.5.3 Changes to the organisation of 3.3.6Technical Conditions 58 the Competition Department 82 3.3.7 Tariff Code 58 3.3.8 Quality of grid managers6 58 The Decisions 84 3.3.9 Monitoring compliance 596.1 Decisions in relation to concentrations 85 3.3.10 Dispute resolution 59 6.1.1 Licence required 85 3.3.11 Contribution scheme 60 6.1.2 No licence required 86 3.3.12 Decisions on administrative appeals 6.1.3 Concentrations in the construction and injunctions in relation to energy 60 industry 90 3.3.13 Advice given to the Minister 62 6.1.4 Other decisions in relation to 3.4 The European energy market 63 concentrations 91 3.4.1 Introduction 63 6.2 Decisions in relation to the regulation of 3.4.2 The European electricity market 64 competition 92 3.4.3 The European gas market 65 6.3 Decisions to impose sanctions 95 3.5 Netherlands Transport Regulatory Authority 6.4 Decisions on administrative appeals 96 [Vervoerkamer] 65 Addenda 102 3 4 Foreword This is the Annual Report for 2001 of the Netherlands Competition Authority (Nederlandse Mededingingsautoriteit, NMa) and the Office for Energy Regulation (Dienst uitvoering en toezicht Energie, DTe), which operates as a chamber of NMa. 5 NMa fulfils a special task within the economic life of the development of a leniency programme by starting a country. The regulation of market processes gives consultation procedure. Companies which provide NMa of expression to the fact that the mandate of the market is their own accord with information on a cartel in which they limited. Market players are able to exercise freedom in participate may be granted fine immunity or a reduction in taking many decisions. The freedom enjoyed by the fine subject to certain conditions. entrepreneurs does not go so far, however, that companies may eliminate competition or exploit an NMa’s relationship to citizens takes various forms. As absence of competition. The law in relation to market taxpayers they may expect NMa to utilise the funds put at regulation sets boundaries in this regard. It focuses on its disposal efficiently and effectively. In the case of situations characterised by centralisation of economic consumers, NMa’s activities may be expected to have a decision-making power. This involves companies with a noticeable and positive effect on the way the markets for monopoly or a dominant position, oligopolistic market goods and services function. For entrepreneurs, NMa’s relationships which have anti-competitive effects and activities have a variety of facets. On the one hand, the law agreements that restrain competition. It is not ‘a mere imposes clear limitations on their freedom of action, trifle’ but involves actual combating of the emergence of insofar as this has a negative effect on competition or economic power. In concrete terms, the improved adversely affects the interests of customers. On the other operation of market forces means greater freedom of hand, competition law promotes the accessibility of choice, better products and favourable pricing for markets and prevents certain types of unfair competition consumers. Where the market does not yet function, or which may be of considerable disadvantage to companies. does not function effectively, and where sector-specific The energy laws are a special extension of this. The regulations are in force, NMa and DTe strive to put into specific cases dealt with often involve a variety of aspects. effect a fair method of simulating the market. In the year under review, for instance, NMa has taken action against anti-competitive practices aimed at Tango, a The processing of applications for exemption for newcomer to the petrol market. The action taken focused agreements that restrain competition developed as on a coordinated price campaign which offered consumers planned in 2001. In various sectors, this involves advantages in the short term. In the longer-term, the challenging barriers to entry and removing other effects of these practices, against which NMa took action, restraints on competition. There is now more room for would sooner have had the opposite effect, namely a less actually investigating and instituting proceedings against accessible market, fewer opportunities for the hardcore cartels. The investigation into price formation development of new methods of distribution and, partly as on the petrol market in the Netherlands was the overture a result, higher prices and less choice for consumers. to this new stage in the life of NMa. DTe has implemented the Gas Act programme, a comprehensive Citizens not only express their interests and preferences package of tasks which sets out the rules of play on the through the market. It would therefore be naive to assume gas market and has further clarified the rules for access that the prosperity of our society only depends on the to the electricity market.