Following the transposition of the new EU directives for electronic communications into Dutch law, the independent regulatory authority for posts and telecommunications (OPTA) and the competition authority (NMa) of The Netherlands have updated their co-operation protocol.
The original protocol was called into existence in order to be able to provide a consistent interpretation to concepts of competition law and sector-specific regulation, and also to prevent what the Dutch call “forum shopping” (entities who will file a complaint with one authority and then, when the outcome of the proceeding is not to their liking, move to another authority in order to attempt to obtain a more favourable result).
The updated protocol stipulates that for issues regarding electronic communications and postal matters, OPTA shall always be the first point of entry for the filing of a complaint. OPTA and NMa will then discuss if the case should also be evaluated by the NMa (cases where the abuse of a dominant market position is suspected). If OPTA and NMa decide that the instruments of one or the other authority are better suited, one of the authorities will withdraw from the case (this can be OPTA).
OPTA and NMa will inform each other of all cases filed which possibly fall within the realm of competence of the other authority. If a case is filed with the NMa and with OPTA, the two regulators will agree on the authority that should be in charge of the case. As long as a case is being processed by either one authority, the other authority will not process the same case (unless there is just cause for the two authorities to deal with the case in parallel, but this can only happen if, after discussion, the two authorities agree that this is the only possible way forward – in case of differences in the legal frameworks).
The updated protocol further contains a large number of rules that will be applied between OPTA and the NMa, including time frames for decisions and the requirement of consistency with regard to definitions used in electronic communications legislation and competition law, used by both authorities.
The protocol has been sent to the Dutch Minister of Economic Affairs and to the European Commission, and will be published in the Dutch Official Journal.