In cases in which new or unsolved questions arise with regard to the application of the prohibition on cartels (section 6 of the Competition Act), undertakings may request an informal opinions from NMa. NMa exercises some reserve in giving such advise, which is also referred to as an informal opinion.
Criteria for informal opinions; Yes, provided that....
In agreeing to issue an informal opinion, NMa adheres to a 'Yes. provided that...'policy. NMa is not the only organisation that adheres to such a policy. The European Commission and the competition authorities of the other Member States adhere to the same policy.
An informal opinion is issued provided that the following cumulative conditions are met.
1. The legal question must be new. In other words, this is a legal question wherefore no answer can be found in existing European or national regulatory frameworks, including those of national and European courts, nor in publicly accessible European or national guidelines, or earlier statements or advisory letters issued by the European Commission or NMa.
2. The social and/or economic importance of the question must be considered. This may include:
* major investments involved in a transaction, relative to the size of the undertakings involved, or the issue's economic importance from the perspective of the consumer of the goods or services to which the agreement or practice relates.
* and/or there must be a strategic need to issue a signal. In other words, the agreements or practice must probably occur often.
3. It must be possible for NMa to draw up an advisory letter on the basis of the information provided by the applicant, in other words without the need for NMa to conduct a further investigation of the facts.
In issuing informal opinions, NMa will ensure that this is not done at the expense of carrying out its key tasks. NMa will therefore only give advice to individual undertakings in so far as its law-enforcement prioirities allow for this.
NMa will not issue an informal opinion if:
A. a similar case is being dealt with by NMa or in a currect court case;
B. a similar case is being dealt with by the European Commission or by another competition authority.
Application for an informal opinion
If you wish to receive an informal opinion from NMa and you meet the above-mentioned criteria, you should submit a written application for an informal opinion, stating your reasons for requesting this. Your application should be addressed to:
NMa
Attn. Mr. P. Kalbfleisch
P.O. Box 16326
2500 BH The Hague
The Netherlands
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