Lex Mundi Global Merger Notification Guide |
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Netherlands |
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(Europe)
Firm
Houthoff
Contributors
Gerrit Oosterhuis |
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| Is there a regulatory regime applicable to mergers and similar transactions? | Yes, the Dutch merger control rules are set out in the Competition Act. |
| Identify the applicable national regulatory agency/agencies. | In the Netherlands, the Authority for Consumers and Markets (''ACM'') is the applicable national regulatory agency. |
| Is there a supranational regulatory agency (e.g., the European Commission) that has, or may have exclusive competence? If so, indicate. | In cases where the European Commission has jurisdiction to review the merger (meaning there is a so-called ''community dimension''), the ACM does not have jurisdiction. |
| Are there merger filing requirements? If so, where are they set out? | Yes. Provided certain turnover thresholds set out in the Competition Act are fulfilled, notification to the ACM is mandatory. |
| What kinds of transactions are "caught" by the national rules? (Identify any notable exceptions.) | Mergers, acquisitions and joint ventures (same as under EU regime). |
| Is notification required for minority investments? | No. Note: the test for minority shareholdings is similar to the EU 'decisive influence' test. |
| Are foreign-to-foreign transactions captured by the merger control regime, and is there a local effects test? | Foreign-to-foreign mergers can be caught if the thresholds are met. No special local effects test. |
| What are the relevant thresholds for notification? | Summary of merger thresholds:
Note:
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| Is the filing voluntary or mandatory? | The filing is mandatory. |
| Provide the time in which a filing must be made. | There is no deadline for filing. |
| Is there an automatic waiting period? If so, please specify. | Yes, it is prohibited to implement a concentration before the ACM has granted approval. |
| What are the form and content of the initial filing? | Filings in the Netherlands contain information regarding the transaction, the parties and their activities, the relevant (product and geographical) markets, general market information and lists of the most important competitors and customers. If there are overlaps and the parties have market shares above 15% on a horizontal market (an affected market in which the undertakings concerned have a combined share of 15% or more in terms of value and/or volume) or market shares above 20% on a vertical market (an affected market in which an undertaking concerned has a share of 20% or more in terms of value and/or volume), the need to provide information increases considerably. |
| Are filing fees required? | Yes, there is a fixed filing fee for the ACM of EUR 17,450 (phase 1) and EUR 34,900 (phase 2). |
| Please provide an overview of the merger review process. Are there time limits within which the regulatory agency must act? Can they be shortened by the parties or be extended by the regulatory agency? | The formal time limit for the ACM in phase 1 must take place within four weeks from filing. In simple cases, the ACM may decide within the four-week period. However, this is not in the power of the notifying parties. The phase 2 review period has a maximum review period of thirteen weeks. Both phases 1 and 2 can be suspended by the authority by ''stop the clock'' until the parties have answered the questions issuing formal questions. |
| What is the substantive test for clearance? | The ACM uses the same substantive test as the European Commission i.e. whether the notified transaction results in a Significant Impediment to Effective Competition ("SIEC") in the Dutch market. |
| What decisions can the agency make in relation to a notified merger (e.g. approval, approval with conditions or prohibition)? | The ACM may either approve a notified transaction (phase 1) or it may conclude that the transaction raises competition concerns and requires a license to effectuate a concentration (phase 2). Both in Phase 1 and in phase 2, restrictions or conditions (remedies) may be implemented. |
| Can parties proactively offer commitments to the agency to remedy identified competition concerns? | Yes. The commitments can be offered and accepted in both phase 1 and 2. |
| Describe the sanctions for not filing or filing an incorrect/incomplete notification. | If the merger thresholds are met and the transaction is not notified, the ACM may impose a penalty. Moreover, the transaction is regarded as void. |
| Describe the penalties applicable to the implementation of a merger before clearance or of a prohibited merger. | The ACM may impose a penalty of EUR 900,000, or, if higher, 10% of the turnover of the purchasing party. |
| Can the agency review and/or challenge mergers that are not notifiable? | No. However, Article 22 EUMR allows the ACM to refer a concentration to the European Commission if the concentration affects cross-border trade and threatens to significantly affect competition within the Netherlands – irrespective of whether the concentration is notifiable under the Dutch or European merger thresholds. Note that this use of Article 22 EUMR depends on the Guidelines of the European Commission. This guidance is controversial and will be contested before the European Court of Justice. |
| Describe the procedures if the agency wants to challenge an unnotified transaction. | Unless the merger thresholds are met, the ACM has no jurisdiction to review the transaction. |
| Describe, briefly, your assessment of the regulatory agency's current attitudes/activities, including enforcement trends and recent developments. | The ACM follows very much the attitude of the European Commission, as well as its interpretation of all major concepts, such as the definition of a merger, turnover and the substantive test. |
| Other important/ notable information: | Not applicable. |
Lex Mundi Global Merger Notification Guide
Yes, the Dutch merger control rules are set out in the Competition Act.
In the Netherlands, the Authority for Consumers and Markets (''ACM'') is the applicable national regulatory agency.
In cases where the European Commission has jurisdiction to review the merger (meaning there is a so-called ''community dimension''), the ACM does not have jurisdiction.
Yes. Provided certain turnover thresholds set out in the Competition Act are fulfilled, notification to the ACM is mandatory.
Mergers, acquisitions and joint ventures (same as under EU regime).
No. Note: the test for minority shareholdings is similar to the EU 'decisive influence' test.
Foreign-to-foreign mergers can be caught if the thresholds are met. No special local effects test.
Summary of merger thresholds:
- the combined worldwide turnover of all undertakings concerned is more than EUR 150 million (approx. USD $177.40m) in the calendar year preceding the concentration and;
- at least two of the undertakings concerned each achieved at least a EUR 30 million (approx. USD $35.48m) turnover in the Netherlands.
Note:
- special regime for healthcare mergers with very low thresholds
- filing is not required if EU thresholds are met (subject to referrals)
- specific manner to measure turnover for financial institutions and commercial real estate
The filing is mandatory.
There is no deadline for filing.
Yes, it is prohibited to implement a concentration before the ACM has granted approval.
Filings in the Netherlands contain information regarding the transaction, the parties and their activities, the relevant (product and geographical) markets, general market information and lists of the most important competitors and customers.
If there are overlaps and the parties have market shares above 15% on a horizontal market (an affected market in which the undertakings concerned have a combined share of 15% or more in terms of value and/or volume) or market shares above 20% on a vertical market (an affected market in which an undertaking concerned has a share of 20% or more in terms of value and/or volume), the need to provide information increases considerably.
Yes, there is a fixed filing fee for the ACM of EUR 17,450 (phase 1) and EUR 34,900 (phase 2).
The formal time limit for the ACM in phase 1 must take place within four weeks from filing. In simple cases, the ACM may decide within the four-week period. However, this is not in the power of the notifying parties. The phase 2 review period has a maximum review period of thirteen weeks. Both phases 1 and 2 can be suspended by the authority by ''stop the clock'' until the parties have answered the questions issuing formal questions.
The ACM uses the same substantive test as the European Commission i.e. whether the notified transaction results in a Significant Impediment to Effective Competition ("SIEC") in the Dutch market.
The ACM may either approve a notified transaction (phase 1) or it may conclude that the transaction raises competition concerns and requires a license to effectuate a concentration (phase 2). Both in Phase 1 and in phase 2, restrictions or conditions (remedies) may be implemented.
Yes. The commitments can be offered and accepted in both phase 1 and 2.
If the merger thresholds are met and the transaction is not notified, the ACM may impose a penalty. Moreover, the transaction is regarded as void.
The ACM may impose a penalty of EUR 900,000, or, if higher, 10% of the turnover of the purchasing party.
No. However, Article 22 EUMR allows the ACM to refer a concentration to the European Commission if the concentration affects cross-border trade and threatens to significantly affect competition within the Netherlands – irrespective of whether the concentration is notifiable under the Dutch or European merger thresholds. Note that this use of Article 22 EUMR depends on the Guidelines of the European Commission. This guidance is controversial and will be contested before the European Court of Justice.
Unless the merger thresholds are met, the ACM has no jurisdiction to review the transaction.
The ACM follows very much the attitude of the European Commission, as well as its interpretation of all major concepts, such as the definition of a merger, turnover and the substantive test.
Not applicable.