On 23 January 2024, the Authority for Consumers and Markets (ACM) announced its 2024 priorities. They are the same for the fourth consecutive year (see our February 2023 newsletter). The energy transition, the digital economy and sustainability seem chiselled on the ACM’s priority list. However, this time better-equipped enforcement methods are available. Furthermore, an Advisory Board has been set up to safeguard the ACM’s independence.
The ACM will keep a watchful eye on online platforms and ‘vendor lock-in’ issues in 2024. Moreover, companies can expect particular scrutiny of concentrations in the media and telecommunications sectors, as well as of anti-competitive conduct undermining sustainability goals and in regard to consumer products and services.
In addition, companies should be aware that the ACM is eyeing at gaining competition tools to remedy tacit collusion or other non-illegal competitive market failures and to catch potentially problematic small acquisitions. Given the already ambitious enforcement plans ahead, the ACM may have bitten off more than it can chew if (and when) these tools are adopted.
Digital economy
In the digital sector, the ACM intends to protect consumers and businesses from (i) the perceived market power of large tech companies and (ii) online deception and manipulation. Key announced measures for 2024 include:
- investigating (i) potential abuses of market power by online platforms and (ii) digital market characteristics, potentially resulting in adverse outcomes, with a focus on ‘vendor lock-in’ issues / economic dependency on supplier product and services;
- investigating online deception and manipulation, particularly in the gaming sector;
- providing guidance to companies and consumers on their rights and obligations under the Digital Services Act (DSA), the Digital Markets Act, the Platform to Business Regulation, the Data Governance Act and the Data Act;
- implementing and integrating these new digital regulations into the ACM’s supervision tasks, and
- setting up a contact point for consumers to share their experiences on how online platforms deal with their DSA-complaints
Energy transition
The ACM aims to speed up the transitioning to a low carbon energy system by taking a number of specific actions in 2024, such as:
- stricter oversight of energy suppliers and energy tariffs;
- taking measures to address congestion of the power grid in the Netherlands;
- providing guidance on the application of the competition rules to company collaborations accelerating the energy transition, and
- proposing solutions to promote the security of energy supply.
Sustainability
The ACM supports the move towards a more sustainable economy by (i) tackling incorrect sustainability claims and (ii) providing guidance to companies on sustainability collaborations (see also our July 2023 and December 2023 newsletters). The ACM’s 2024 sustainability actions include:
- stricter oversight of misleading sustainability claims, particularly in the transport sector;
- investigating potential abuse of a dominant position and anti-competitive conduct undermining sustainability goals;
- providing informal guidance to companies intending to embark on sustainability collaborations (including in the ago-nutri sector), and
- investigating whether the ACM’s supervision in the telecommunications, postal and transport sectors hampers sustainability.
New competition tools?
On top of the three above-mentioned priorities, the ACM will pay special attention to concentrations in the media and telecommunications sectors, as well as to anti-competitive conduct in regard to consumer products and services. The healthcare sector will also remain on its focus list, given the importance of access to care and the drain on public and private resources.
When enforcing these priorities and focus areas, the ACM will strive for a legal track record that strikes a balance between due care and “sometimes deliberately choosing a more legally risky approach” to resolve market problems. The ACM may be able to tone down this ‘more risky’ approach, once it gets the additional tools on its current wish list
Namely, the ACM, together with the Ministry of Economic Affairs, is exploring whether additional tools are required to promote competition in, for instance, markets where specific characteristics lead to problems (and thus higher prices or poorer quality for consumers) and in the case of small takeovers.
Time will tell whether the ACM should have been careful what it wished for: the ACM itself notes in its 2024 annual plan that when gaining new tools, there is a high risk that it does not have sufficient (timely) capacity and expertise. Given the already ambitious priorities ahead, it remains to be seen how this will work out.
