Partners Ruben Elkerbout and Stijn Huijts had the pleasure of catching up with Martijn Snoep, the head of the Dutch Competition Authority (ACM) recently. Mr Snoep moved to the ACM from law firm De Brauw in 2018. He has been at the forefront of many internationally renowned initiatives at the ACM, including an investigation into Apple’s treatment of dating apps on the App Store, and a drive towards allowing sustainability considerations to play a role in competition analysis.
In the interview, we discuss how he became a competition lawyer, his views on the Digital Markets Act (and the role national authorities can play in enforcing it), and how he interacts with the political debate. Enjoy the read.
Personal questions
What sparked your interest in competition law, and how did you end up leading the ACM after decades in private practice?
Growing up, the economy was not a particularly significant topic of discussion at home. My interest in markets and the economy was initially sparked during my final year of high school in the United States when we were shown an educational video of Milton Friedman explaining how a pencil is created. I found it fascinating!
At university, I began studying a dual degree in economics and law at the Erasmus University Rotterdam but later decided to drop the economics part and focus solely on law. In the build-up towards the completion of the Internal Market in1992, I was caught up in the European movement. I was fascinated by European law and the possibilities it provided to break open a stagnant Dutch economy. This inspired me to study European law.
After graduation, I joined the law firm, De Brauw, where I already worked as a paralegal, and ended up staying there for 28 years. There, I developed a practice that focussed first on EU law and gradually more and more on competition law. At the time, it was rare to specialise in competition law which was seen as a subfield of EU law, and I belonged to one of the first generations of lawyers in the Netherlands to do so.
Eventually, I became the managing partner at De Brauw and continued developing the practice, but I felt like something was missing: I wanted to work for the greater good. Therefore, when my predecessor at ACM resigned, I gave him a call and applied for the position. The funny thing is that this was the first time I officially applied for a job during my career, having to submit a letter and CV and go through rounds of interviews.
What has been the highlight of your career so far?
I simply cannot name one highlight, that is like asking a parent to name their favourite child! What I can say is that I have been in my current position for around five years now, and I have found it fascinating, relevant and incredibly rewarding.
ACM priorities
What are ACM’s main priorities for this upcoming year?
As we are a multifunctional agency we set our priorities across all areas, so these are energy transition, digital economy and sustainability. For competition, we also focus on goods and services that have an impact on the cost of living for consumers.
The ACM is known for having a strict prioritisation policy for competition law enforcement. How open is the ACM for more traditional competition law complaints/cases?
The ACM is very different from most competition authorities in Europe. We are currently growing and aim to employ roughly 800 people, approximately 120 of whom focus on competition law. But besides competition law, we cover many diverse areas, including consumer protection, energy, telecommunications and transportation, to name a few. The purpose of the ACM’s priorities is to focus the attention of the entire agency and the efforts of the different teams on the three main priorities. However, this does not mean that we do not carry on working on matters outside these areas, they just have less priority.
When it comes to our prioritisation policy for competition law enforcement, there is indeed a strict prioritisation policy in place. However, it is not necessarily any more stringent than in other areas; some could even argue it is less so. If we look at consumer protection, for example, we have around 10,000 leads a year, of which we need to select a few cases, which obviously requires very strict prioritisation.
One factor that influences our decision making on which competition cases to pursue is capacity. Our capacity is sometimes constrained by mergers, which is something that is beyond our control. Other factors that impact our prioritisation are progress in our other ongoing cases, societal impact of a certain case and our appetite to take on a case on a novel interpretation of the law. But overall, prioritisation is more of an art than a science. We aim to be diligent, fair and objective, but we know that it can still be difficult to predict whether a case will be picked up or not and, in these cases, we advise to get in touch with the ACM beforehand to check with us directly whether a complaint will be of interest to us. This could safe time, money and energy but off course we will only decide after receiving the full complaint.
Digital Economy
The ACM will soon take on significant roles in relation to the Digital Services Act and Digital Markets Act. What can you tell us about your plans in this area?
As a multifunctional authority, we have a set of available tools. We usually begin by focusing on a problem and only then decide on the best tool to address that problem. Sometimes we will even start an investigation without knowing which tool to use. This is a positive thing as the focus of the investigation should be on the issue, i.e. the harm caused. We always ask ourselves “Why is this bad?” and because it is a violation of the law is not a sufficient answer – we want to achieve something, address an issue, solve a problem, and if that means tackling an infringement, even better.
We also do not shy away from investigations. There is a misconception that a good investigation leads to a fine, but this is not necessarily the case. There are many other ways to ensure compliance and a well-functioning market.
On preparing ourselves for the new responsibilities relating to the enforcement of digital regulations, the Dutch government has granted us a budget for the enforcement of the Digital Services Act (DSA), Digital Markets Act (DMA), the Platform-to-Business Regulation (P2B), the Data Governance Act and the Data Act. We have established a specialised unit to deal with these matters, consisting of staff fully dedicated to these issues with different expertise from competition and consumer protection experts to data scientist and behavioural psychologists.
We will be the main regulator in charge of DSA enforcement in the Netherlands, and considering how attractive the Netherlands is for platform companies to establish their headquarters, we will probably one of busiest Digital Services Coordinators after the Irish agencies. An important task for us arising from the DSA will be complaint handling. We need to put in place infrastructure to receive and handle complaints and to be able to prioritise them.
With DMA enforcement, the European Commission plays the main role. But this does not mean that national competition authorities play no role. After the compliance deadline next month, the national authorities will likely need to step up to the plate and be prepared to receive complaints and conduct investigations. Furthermore, the European Competition Network (ECN) will be extremely important to ensure that there are neither overlaps nor gaps in the enforcement. It is a very interesting time for the ECN as a whole. Lastly, the narrative with the DMA is very much focused on it providing a shield against the gatekeepers, and while that is true, we should not forget that it also aims to promote innovation, growth and business in Europe for business users. This is a theme we wish to pick up at the ECN and we are starting by organising a conference on 24 June 2024 where we aim to provide a platform for business users to voice their concerns but also to share what benefits the DMA has brought them. This is an area where we see an important role for the NCAs to play as they are closer to startup businesses in their local territories. It will be easier for small businesses to approach their national competition authority who can then liaise with the other NCAs within the ECN or even with the European Commission.
Engaging in the political debate
In the UK, Members of Parliament are very vocal about the CMA’s work and priorities, including requiring the CMA to appear before Parliamentary Select Committees multiple times. How do you view the ACM’s role vis-à-vis elected politicians, and is there anything you personally do as head of the ACM to interact with them?
In the past, the ACM officials rarely spoke to elected officials, and they would need prior approval from the Ministry to speak to them. Nowadays, the ACM does directly interact with elected representatives, but two points should be made on that.
First, we find it highly important that interaction is open and transparent. This means ensuring that the information shared is equally accessible to everyone and that no one representative is granted more information than others.
Second, an unfortunate point is that there is not a great deal of interest in competition by the elected officials in the Netherlands. They tend to find competition somewhat abstract as a topic, and the greatest interest within the competition field relates to energy. On energy, other ACM board members and I appear at parliamentary committee hearings from time to time. Additionally, the four founding members of the Digital Regulation Cooperation Platform (SDT) were recently interviewed by the special committee for the digital economy. We have a new parliament in the Netherlands, and it is informative for them to know how the authorities cooperate.
The SDT was inspired by a similar mechanism in the UK (the Digital Regulation Cooperation Forum), and it comprises four regulators: the Netherlands Authority for Consumers and Markets (ACM), the Dutch Authority for Financial Markets (AFM), the Dutch Data Protection Authority (AP), and the Dutch Media Authority (CvdM). The four founding regulators are responsible for maintaining the structure but there are separate chambers for certain topics where more regulators come together depending on their areas of interest. The aim is the same as with the ECN: to avoid overlap or gaps in enforcement and to share knowledge and expertise. So far, the platform has worked well but like with any conglomerate tensions are to be expected. It is only natural that different regulators wish to do different things but overall, I am very happy with how it is functioning.
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