The Public Enterprises Market Activities Act (Wet Markt en Overheid, "PEMAA") is in force from 1 July 2012. The purpose of this act is to counter unfair competition of governmental bodies and public enterprises that engage in economic activities, for example by providing advertisement or security services to private entities or by leasing publicly owned space. Public enterprises are undertakings controlled by the government or in which the government participates. While acting on the playing field of private undertakings, governmental bodies and public enterprises could have competitive advantages such as the possession of financial reserves and information that is not publicly available. Such competitive advantages could lead to unfair competition.
The PEMAA contains four rules of conduct that are applicable to all governmental bodies and public enterprises when engaging in economic activities:
(i) Full passing-on of costs: a governmental body or public enterprise that offers products or services, which could be offered by private undertakings, has to charge the full costs to the purchaser of these goods or services.
(ii) Prohibition of preferential treatment: governmental bodies are not allowed to discriminate public enterprises in favour of other undertakings.
(iii) Use of data: governmental bodies that have obtained information within a public context are not allowed to use this information while engaging in economic activities if this information cannot be provided to third parties as well.
(iv) Separation of duties: persons that exercise public functions are not allowed to be involved in economic activities, which relate in any way to this exercise.
From 1 July 2013 rule (iv) regarding the separation of duties is applicable to all economic activities. Rule (i) is applicable from 1 July 2012 if the relevant economic activity already took place before 1 July 2012. Otherwise, this rule will be applicable as of 1 July 2014. Rules (ii) and (iv) are applicable as of 1 July 2012 if the contract involved is concluded before 1 July 2012 and as of 1 July 2014 if the contract is concluded after 1 July 2012. The Authority for Consumers & Markets (Autoriteit Consument & Markt, "ACM") monitors compliance with the PEMAA.
