Anticipation on cartel and concentration control

The Dutch Competition Authority maintains the Competition Act. The Competition Act includes the prohibition of making appointments or carrying out mergers that restrict competition. To what extent do companies and their advisers take such supervision by the Nma into account? In other words, what is the anticipation effect of competition regulation? When anti-competitive behavior is not undertaken because of control, there is an anticipation effect. SEO Economic Research investigated this effect by means of surveys of businesses and consultants and econometric analysis.

Surveys of businesses show that 5% of the reported mergers have been adjusted before reporting to eliminate potential competition concerns. Besides every 100 merger notifications are 13 intentions for monitoring concentrations not be put into a report. For every 100 merger reportings there are 13 plans that never become a reporting because of the concentration control. Companies also take the Competition Act in account when they design contracts, visit meetings or confer. The survey of lawyers and other advisers shows that against every sanction decision of the NMa are almost 5 for the NMa unknown cases, where a prohibited practice has been discontinued or modified based on competition law advice.

What factors influence the magnitude of the anticipation effect? Using econometric analysis, the effect of market share, remedies, costs of reporting and the duration of the notification phase investigated. For cartel control the effect of the NMa Agenda, the leniency program, the personal penalty, the fine for the company and negative publicity are investigated.