Flevoland County may have been guilty of attempting to set up a buying cartel. This is evident from documents that the county itself has put online in the context of the Open Government (WOO) Act and from conversations the NOS has had with lawyers on the subject.
The county wanted to coordinate with Schiphol that farmers would negotiate farm purchases because of the nitrogen space that would be released as a result. Such an agreement can reduce the price and is not allowed.
In an email, a regional official says farmers may “talk to many nitrogen seekers and thus raise prices. These are market forces and [er is] It’s not always something you do about it, but it can be helpful to orchestrate it.”
Rep. Harold Hofstra (Cristinoni) of Flevoland County said in a response that the county only asked this question to find out what was going on in this area of the county. But according to the lawyers who spoke to the NOS, Flevoland should not get involved in buying farms in this way, because there is no longer a fair market for farmers who want to sell their company.
“Coordination between parties is prohibited by competition law,” says Professor Peter Kuipers of Radboud University. “Both parties here are buyers of nitrogen rights and therefore operate as companies. Then you have to comply with competition law.”
Schiphol needs nitrogen space so he can open Lelystad Airport. If it were in Schiphol, commercial flights should have taken off and landed there long ago, but this is not the case, partly due to problems with the nitrogen permit.
If Schiphol buys farmers, it can use the nitrogen space those farmers used to obtain a permit for its airports. It was previously announced that the company was buying farmers in North Holland, South Holland and Utrecht, due to a permit from Schiphol itself.
The districts are upset with these purchases from Schiphol, because they also want to buy farms themselves, for example to build infrastructure projects or legalize farmers without a permit. WOO documents show that the county of Flevoland essentially tried to find nitrogen space to build a port near Urk.
In order not to raise prices endlessly, coordination may seem beneficial to civil servants, but it is not permissible, says lawyer Kuipers. “Civil servants often think that competition law applies only to companies, but that governments must also comply with it when they engage in economic activities. Whether it is a municipality, county or water board.”
Reply from Flevoland County
Flevoland County says it never attempted to lower the price with the above email. “We are district managers in Flevoland,” says Deputy Hofstra. “So we are also consulting with the parties to ask: What are your plans? What are you working on? In this context, we are also sending this email to the Schiphol group.”
However, he acknowledges that the province also wants to keep costs in check. “Farmers have a good right to get a good price for their farms. But it’s also about the government money we use. Appropriate question. We don’t want to spend government money unnecessarily.”
He rejects the fact that, in the opinion of the lawyers, this illegally influences the price. “I’m not a lawyer, but I don’t agree with that. I understand that professors may think the proposal is submitted, but read what’s in the email again.”
The published emails illustrate a dilemma faced by local officials. On the other hand, they don’t want to pay too much because governments are competing against each other. On the other hand, farmers are entitled to a fair price for their nitrogen rights, which they would not receive if agreements were made or information exchanged behind their backs.
In the end, no such agreements were reached between Schiphol and the County of Flevoland. In response to the boycott, an airport employee stated that there had been no talk with farmers from Flevoland at that time. However, the lawyers say, Flevoland’s proposal alone is against the law. According to them, that may be enough for the regulator ACM to launch an investigation.
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