In 2019, the Ministry of Economic Affairs and Climate (EZK) wrongly granted PostNL a permit for the acquisition of competitor Sandd. The Trade and Industry Appeals Tribunal (CBb) announced this on Thursday specifically in an appeal filed by the ministry. An earlier decision of the court in Rotterdam therefore remains in force.
Also read: Keijzer: ‘Merger PostNL, Sandd was crucial for mail delivery’
The Netherlands Authority for Consumers and Markets (ACM) did not grant permission for the acquisition of Sandd by PostNL in 2019, because this would make the market power of the merged postal company too great. The two parties found themselves in financial difficulties due to the shrinking market and hoped for a better future by merging.
PostNL asked then minister Mona Keijzer (CDA, Economic Affairs) after the regulator’s refusal to grant a license for the merger. The minister can do this in exceptional cases, if the social interest of an acquisition outweighs the restriction of competition. According to Keijzer and the postal companies, this was the case because the national postal services and employment would be at stake without a takeover.
Lawsuit
Four smaller postal companies appealed the acquisition for fear of price increases or exclusion of business services that PostNL offered them. The court ruled in favor of the small postal companies in 2020 and ruled that the minister had not made it sufficiently clear why the public interest outweighed the prevention of market concentration.
Regulator ACM had already ruled that the continuity of the service was not at risk, according to the court, so that no further social interests were left that would be served by the deal. The CBb is now following the reasoning of the Rotterdam court and annulling the permit.
Final verdict
The decision of the appeals board is final. An appeal by PostNL against the refusal of the license by ACM is still pending at the Rotterdam District Court. This case was suspended until the decision of the CBb. If PostNL upholds the appeal, that procedure can be continued. It has therefore not yet been established that PostNL and Sandd will not be able to obtain the license required by the Competition Act for the takeover.
Remarkably enough, PostNL and Sandd have been one company for more than two years now. The merger could be continued pending legal proceedings. PostNL previously stated that the merger can therefore no longer be reversed. The Ministry of EZK calls the ruling against the ANP news agency “drastic” and says it will study it “carefully”. PostNL has not yet responded to the ruling.