Martijn van de Hel and Réshmi Rampersad have successfully represented MKB Multifunds in objection proceedings before the Netherlands Authority for Consumers & Markets (“ACM”) regarding a violation of the Wet markt en overheid (Public Enterprises (Market Activities) Act) by the Ministry of Economic Affairs and Climate Policy (the “Ministry”).
The Ministry has its own investment fund, known as Dutch Venture Initiative (“DVI”). Using development agency PPM Oost (now named Oost NL), the Ministry invests in SMEs in the Netherlands via DVI. The Ministry holds shares in PPM Oost and is in charge of its day-to-day management. DVI invests in private equity funds that in turn invest in SMEs. The Ministry has granted a total of EUR 230 million in subsidies to DVI since 2012. In addition to those subsidies, the Ministry favours DVI in various manners over competing market parties such as MKB Multifunds. DVI has been criticised in the media (see here and here) and in politics for quite some time already. In a report of its own, the Court of Audit has also criticised the government involvement in DVI.
The selective favouring of DVI by the Ministry is distorting competition. As a result, MKB Multifunds has been prevented from attracting investors. MKB Multifunds filed a complaint with ACM on that ground. ACM initially found that the Ministry’s involvement in DVI did not constitute unfair competition. MKB Multifunds objected to that decision.
ACM failed to rule on MKB Multifunds’ objection in a timely manner and the decision on the objection ultimately had to be enforced by the administrative court. ACM has now found that the objection is partially justified and that the Ministry induced investors to invest in DVI, a public enterprise. The Dutch government thereby selectively favours its own enterprise, which is prohibited under the Public Enterprises (Market Activities) Act.
The problem of government involvement in DVI also plays a role at a European level. The European Commission previously rejected MKB Multifunds’ complaint regarding unlawful state aid granted to DVI by the Ministry; see our earlier report on this subject. MKB Multifunds has filed an appeal with the Court of Justice of the European Union against the General Court’s ruling.