Energy & Infrastructure M&A 2025 Comparisons

The M&A market for energy and infrastructure in the Netherlands has shown surprising strength and adaptability, even though it continues to face some challenges.

Uncertainty with respect to policies, EU and national regulations and energy prices, has led many companies to reassess their strategic plans. Due to uncertain business cases, industrial players, such as refineries and chemical companies, are currently postponing large investments in electrification, hydrogen or carbon capture and storage.

Most imminent is the regulatory challenge of obtaining NOx emissions (primarily nitric oxide and nitrogen dioxide) permits. This introduces new complexities in the current challenging phase of the transition from fossil fuels to sustainable energy.

Companies that anticipate the energy transition-related changes can position themselves for success in the evolving market. The current market conditions and policy uncertainty may have made investors more selective and call for businesses to increase energy efficiency and flexibility.

Grid congestion remains a challenge in the Netherlands, making it difficult to obtain new connections or expand capacity. This is a persistent problem for electrification, compounded by increased energy utilisation, without a quick and easy straightforward solution. Despite the Dutch government making available additional funds to alleviate grid congestion, grid operators are often unable to quickly realise additional capacity on the grid and new connections, because of practical issues (eg, staff shortages) and regulatory hurdles (eg, obtaining permits).

Practical solutions have emerged to enable progress and give companies more control over their energy security, such as smart or private grids, flexible contracts and (co-located) battery energy storage system (BESS) projects. Solutions like cable pooling allow renewable energy projects to share a grid connection with BESS projects, supporting a more flexible and resilient energy system. On-site generation using solar or wind energy, combined with BESS, is already in use. This can be combined with closed distribution systems on industrial sites, which make it possible to share capacity and costs. Solutions like this allow companies to develop new projects while staying within grid limits. In addition, there may also be an additional revenue model, insofar as batteries also being able to be used to reduce grid congestion.

Geopolitical factors, especially European energy security, are influencing corporate strategies and deal-making. Companies are diversifying energy portfolios to reduce market volatility. Technologies such as batteries and solar panels rely heavily on critical minerals like lithium and rare earth elements, much of which are tied to global supply chains involving countries such as China. However, the growing demand for these minerals also presents new opportunities for innovation and strategic investments.

Investors enter the Dutch energy and infrastructure M&A market through acquisitions, joint ventures and partnerships. They are drawn largely to renewable energy projects, grid solutions and supporting infrastructures for stable returns, ESG alignment and state incentives for such assets. Private equity firms become more active and tend to apply “buy and build” strategies to develop smaller players or expand holdings of viable assets.

Additionally, infra funds and foreign investors are entering via minority stakes or co-investments in renewable and grid projects, sharing risks with local participants. The market also sees start-ups scaling up and existing corporates expanding their footprints further, resulting in prospects for consolidation as much as new entry. Investors complement financial strategy with sector expertise to navigate regulatory, ESG and technology obstacles and target robust, sustainable assets of the energy transition.

Although there has been more activity in conventional energy, renewables and new energy projects still represent the vast majority.

Investments are now directed at technologies which will improve grid flexibility and support capacities, such as BESS and smart grids.

Renewable energy projects are expected to regain importance in the energy market, especially when projects are supported by governmental incentive schemes.

Increased activity in the heat market in the Netherlands is expected in the next few years. The Dutch heat sector – especially district heating – is poised for significant M&A activity driven by the energy transition and new regulations. At the same time, a new law will require public ownership of a majority stake in heat networks, fundamentally reshaping the industry’s ownership structure. As a result, major private utilities are preparing to divest their heat businesses.

Furthermore, activity in defence-related infrastructure projects is expected to increase.

The Netherlands offers an attractive environment for start-ups, supported by a flexible legal framework and innovation incentives. The most common legal form is the private limited liability company (besloten vennootschap met beperkte aansprakelijkheid), which features limited liability, no minimum capital requirement and flexibility in corporate governance, such as customisable shareholder rights. Incorporation is fast and cost-efficient, typically completed within a few days to two weeks.

The Dutch government, furthermore, supports entrepreneurship, for example, through tax benefits and subsidies. The Netherlands is also a top choice due to its geographical location, legal stability and EU market access.

Typical liquidity events for ventures such as energy and infrastructure companies include sales to private equity, investors or other financial sponsors. Founders often achieve an exit by selling their shares, but, increasingly, it is common for founders and key management to partially reinvest or “roll over” their equity into the acquiring company. This creates an incentive for them to continue driving the company’s performance post-transaction.

Moreover, it has become increasingly popular to offer venture capital shareholders options to co-sell their shares alongside founders or to roll over part of their investment into the buyer’s equity.

Spin-offs are increasingly common in the Dutch energy and infrastructure sector. They take several forms, including both academic and corporate spin-offs.

Academic spin-offs often emerge from Dutch technical universities, and universities have implemented transparent deal terms to transfer intellectual property, facilitating smoother negotiations and making these spin-offs more investor friendly.

Corporate spin-offs are often initiated by established organisations aiming to explore new technologies, business models, or innovation strategies outside their core operations. Operating independently allows them to innovate rapidly while benefiting from their parent company’s expertise.

The primary drivers for spin-offs include accelerated innovation, specialisation, financial transparency, and adaptability to changing market dynamics and increasing regulations.

A spin-off will, in principle, lead to a capital gain for Dutch tax purposes, equal to the difference between the book value and fair market value of the spun-off assets. However, in case a spin-off is structured as a full or partial legal demerger, a tax-neutral roll-over facility exists. Using the facility is not mandatory. The facility is available provided that specific conditions are met.

Most important is the anti-abuse rule, requiring that the demerger must not be predominantly aimed at the avoidance or deferral of taxation, but made for business reasons (ie, non-tax reasons). If (part of) the shares in the entities involved in the demerger are sold within three years following the demerger, a lack of predominantly business reasons is assumed. Shifting the burden of proof to the taxpayer would make it plausible that the transaction was based on predominantly business reasons.

In addition, the following conditions are relevant to apply the roll-over facility without approval from the Dutch tax authorities.

• The same (profit) regime applies to both the demerged and acquiring entity (eg, no innovation box regime, and no foreign branches).
• Neither the demerged nor the acquiring entity has any tax claims available (eg, loss carry-forward, or double taxation relief).
• The demerged business remains subject to Dutch corporate income tax (eg, assets are not transferred to a foreign subsidiary or branch).

If these conditions are not satisfied, the taxpayer may submit a request to the Dutch tax authorities to authorise the roll-over facility, who may then grant approval under certain additional conditions. The request should be submitted prior to the demerger, although the decision does not necessarily need to be awaited.

Under Dutch corporate law there is sufficient flexibility to structure a spin-off that is immediately followed by a business combination, such as a merger or acquisition. Such spin-offs can end up as standalone entities or subsidiary organisations, depending on the desires of the parent company.

A spin-off offers an appealing form for attracting investment and enabling co-operation. It provides flexibility for developing projects outside of the core business. This makes it enticing for rapidly changing sectors such as energy and infrastructure, wherein innovation creates continued change.

Spin-offs contribute to the growth of renewable energy companies, increased private equity and institutional investor involvement, and future trends such as smart grids, data-driven energy management and decentralised energy systems.

The timing of a spin-off in the Netherlands depends on various factors, including the complexity of the transaction, regulatory requirements, internal restructuring and due diligence procedures. When the spin-off is structured through a legal demerger, a one-month objection period applies following the filing of the proposal with the Dutch Chamber of Commerce and the publication of a mandatory notice in a nationally distributed daily newspaper. In the event of a spin-off of a business involving employees, the employer is subject to specific information obligations. Although no statutory waiting period applies, it is generally advisable to inform and consult employees in a timely manner prior to the effective date of the spin-off, whereby at least two months is considered timely.

In case a request needs to be filed with the Dutch tax authorities to apply the tax-neutral roll-over facility discussed previously, a typical term of receiving such approval is 6–12 weeks (although this may be substantially longer in case there are additional questions). While it is generally advised to await the approval, strictly speaking the approval may also be granted post-demerger as long as the request was filed pre-demerger.

Stakebuilding vs Prohibition of Insider Dealing

The practice of acquiring and/or (rapidly) increasing ones stake in a publicly listed company (“stakebuilding”), prior to making a public offer, is not uncommon in the Netherlands. However, depending on the circumstances of the case, stake-building in connection with an intended public offer may fall under the prohibition of insider dealing based on the Market Abuse Regulation (EU) No 596/2014 (as amended, the MAR) if the potential offeror is in the possession of inside information.

Major Holding Notifications

Pursuant to the Dutch Financial Supervision Act (DFSA) the direct or indirect capital interest and/or voting rights in:

• a Dutch public limited liability company (Dutch N.V.) listed on an EEA regulated market;
• a company from another EU member state solely listed on a Dutch regulated market; or
• a third country company listed on a Dutch regulated market,

must be notified to the Dutch Authority for the Financial Markets (Stichting Autoriteit voor de Financiele Markten, AFM) without delay of such capital interest and/or voting rights reaching, exceeding or falling below one of the following thresholds: 3%, 5%, 10%, 15%, 20%, 25%, 30%, 40%, 50%, 60%, 75% or 95%.

“Put Up or Shut Up” Requirement

A shareholder is not required to state the purpose of crossing the thresholds or its plans or intentions with respect to the company. However, if information that is made publicly available by a person creates the impression that this person is preparing a public offer, the potential target company may request that the AFM impose an obligation on a potential offeror to:

• announce a public offer (which is not a mandatory offer) for the shares in the target company (put up); or
• make a public announcement that it does not have an intention to announce or make a public offer (shut up), within six weeks; and
• publicly announce the imposed “put up or shut up” requirement without delay.

If the potential offeror chooses to “shut up”, he/she may not announce or make a public offer on the shares in that target for a period of six months.

The DFSA contains a mandatory takeover regime, according to which, any person, acting alone or in concert with others, acquiring, directly or indirectly, predominant control (overwegende zeggenschap) (ie, the ability to exercise at least 30% of the voting rights at the general meeting) in a Dutch N.V. listed on an EEA regulated market, is obligated to make a mandatory public takeover offer for all issued shares in the capital of that company and all depositary receipts for shares issued with the co-operation of that company.

However, certain exemptions apply, the most notable being:

• a person who already had predominant control when the shares in the company were first listed on the regulated market (ie, the grandfathering exemption); and
• persons who lose predominant control within 30 calendar days of acquiring such predominant control, provided that:
1. the loss of predominant control is not the result of a transfer of capital interest of voting rights to a person who is exempted from the mandatory takeover regime; and
2. the person who acquired predominant control did not exercise its voting rights prior to losing predominant control (ie, the “grace period”).

The typical and most common transaction structure for the acquisition of a publicly listed company is a full public tender offer, aimed at obtaining 100% of the shares in the target company, followed by a compulsory acquisition procedure (uitkoopprocedure) or pre-wired back-end measures, depending on the amount of shares that were tendered in the public offer.

Generally, the offeror declares the offer unconditional once the minimum threshold (often starting at 95% but sometimes lowered to a range between 70–90%) and other offer conditions have been satisfied or waived. If the offeror holds at least 95% of the issued share capital of the target company, the offeror may initiate a compulsory acquisition procedure against the remaining minority shareholders in accordance with the Dutch Civil Code. Dutch practice has evolved such that, provided that certain resolutions have been adopted by the target company’s general meeting prior to the end of the offer period, if following the offer, the offeror’s shareholding meets a minimum threshold (see above), the offeror can initiate so-called pre-wired back-end measures to obtain sole ownership of the target company. Such pre-wired back-end measures often take the form of an asset sale or a (cross-border) legal merger (juridische fusie).

Alternative transaction structures to public offers include inversions, dual-headed structures, joint ventures, spin-offs, and reverse takeovers.

Most public offers for shares in Dutch-listed companies across all industries are made in cash, rather than as a stock-for-stock exchange offer. The consideration may also consist (in whole or in part) of shares, provided that such shares should also be listed to more objectively determine the value of the shares and the exchange rate.

In the case of a friendly public tender offer, the offeror would have negotiated the offer price with the management of the target company, who will have been advised by investment banks through fairness opinions. However, if the offeror must make a mandatory offer the offeror would be required to pay a fair or equitable price (billijke prijs). The fair price is the highest price paid by the offeror in the year preceding the announcement of the mandatory offer. If the offeror has not acquired any shares in the preceding year and acquires predominant control due to other circumstances (eg, cancellation of shares), the average share price during that preceding year will be deemed a fair price. Shareholders may also request the Dutch courts to set a fair price. If, after the announcement, the bidder purchases securities at a higher price than the fair price, that higher “best price” must be paid to all shareholders who validly tender and do not withdraw their shares in the offer.

In case a takeover is structured as a legal merger, the consideration will merely consist of shares in the acquiring company, unless it is a cross-border legal merger in which case dissenting shareholders must be offered a right to cash-out.

Contingent value rights, or other mechanisms to bridge value gaps in case of valuation uncertainties, may be used but are not typically used in the public takeovers of Dutch-listed companies.

In a friendly takeover, the bidder and target are free to determine the relevant offer conditions. The following four typical offer conditions are most common.

• The minimum threshold, being the minimum percentage of share capital and voting rights the offeror may obtain after the offer, when adding up the offeror’s existing capital interest and voting rights and the amount of tendered shares. The minimum threshold often starts at 95% but, depending on certain resolutions being adopted, is lowered to a range between 70–90%.
• Obtaining the applicable regulatory approvals and other clearances (eg, competition clearance). These will have to be determined during the negotiations by the offeror and target.
• Obtaining all required corporate authorisations from the general meeting of shareholders of the target.
• No public announcements having been made for competing public offers.

The offer conditions may not include such conditions of which the fulfilment is solely dependent on the will of the offeror (so-called potestative conditions).

A mandatory takeover offer cannot contain any offer conditions.

If the offeror and the target company reach an agreement on the offer, they conclude a merger protocol or merger agreement (a “purchase agreement” for Dutch companies listed on US stock exchanges). This contains the rights and obligations of the offeror and the target company and its management vis-à-vis each other in connection with the tender offer.

Pursuant to the merger protocol, the offeror would be obliged to make a public tender offer for all the issued shares in the capital of the target company on the terms and conditions agreed therein and make the offer unconditional if all offer conditions are satisfied or waived. Some of the obligations of the target company and its management may include:

• publishing a position statement in which the management of the target company recommends to the shareholders to tender their shares in the offer;
• entering into irrevocable undertakings with the offeror, pursuant to which individual management board members or supervisory board members commit to tender any shares held or controlled by them in the offer;
• providing information to the offeror for the offeror to conduct a due diligence review;
• convening an extraordinary general meeting of shareholders to put to vote any resolutions required for the tender offer and the pre-wired back-end measures and recommending that the shareholders vote in favour of such resolutions;
• using best efforts to avoid an adverse recommendation change;
• obtaining a fairness opinion;
• co-operating in obtaining any required regulatory approvals and making any required notifications;
• agreeing to not solicit any competing offers during a certain exclusivity period, and in case of an unsolicited competing offer, allow the offeror to match the competing offer; and
• agreeing to a break fee in case of the early termination of the merger protocol by the target company.

In typical Dutch takeover processes, the target company also provides a limited set of representations and warranties, generally related to the number of outstanding shares and other technical company law matters, and confirmations regarding the fulfilment of disclosure requirements. A breach of such representations and warranties may be a cause for termination of the merger protocol, especially if such breach is expected to have material adverse consequences for the target company, the offeror or the transaction.

Under Dutch law, control over a legal entity can generally be presumed if someone can exercise 50% + 1 vote in the general meeting of shareholders, or can appoint most of the statutory directors of that entity. Due to the interspersed voting in the general meetings of listed companies, in such companies, having less than 50% of the voting rights may already constitute effective control. As such, the statutory threshold for predominant control in connection with the Dutch mandatory takeover regime is 30%.

However, certain resolutions, including resolutions which would be required in connection with the pre-wired back-end measures, and therefore with obtaining all the issued shares in the capital of the target company, may require a qualified majority of the votes cast in the general meeting according to Dutch law or the articles of association. This is why the minimum threshold or minimum acceptance often starts at 95% but, depending on certain resolutions being adopted, is lowered to a range between 70–90% of the issued share capital.

If the offeror obtained at least 95% of the issued capital of the target company following a successful tender offer, it has the option to buy out the remaining minority shareholders by initiating a compulsory acquisition procedure at the Enterprise Chamber of the Amsterdam Court of Appeal (Ondernemingskamer, Enterprise Chamber) to acquire the remaining shares at a fair price. The right to initiate a compulsory acquisition procedure must be exercised within three months following the expiry of the acceptance period of the offer. The fair price will generally be equal to the offer price under the offer.

When submitting the offer memorandum to the AFM for approval, the offeror must have obtained a so-called “certainty of funds”, meaning that binding financing arrangements are in place to ensure that the offer consideration can be paid at settlement of the offer. As a result, a takeover offer cannot be conditional on obtaining financing. The certainty-of-funds condition is applicable to every form of public offer. If a mandatory offer obligation is triggered, this obligation will not be lifted if the offeror cannot secure funding, since shareholder protection prevails over financing constraints. However, the offeror may change the financing arrangements that are in place after the certainty of funds has been announced, provided that the alternate financing arrangements also satisfy the certainty-of-funds condition.

To safeguard the agreements made between the offeror and the target company regarding a tender offer, the merger protocol will generally include deal protection measures, whereby the target company binds itself to the offer. Examples are break fees or a non-solicitation provision stipulating that the target company will not solicit any superior offers from third parties, and if a superior offer is made, matching rights would allow the offeror to match any such superior offers.

Under Dutch law, deal protection measures that a target company may grant are not categorically prohibited, but their use is limited by the fiduciary duties of the management and supervisory boards to act in the interest of the company and its stakeholders and to safeguard a level playing field between competing bidders. Break fees, matching rights and non-solicitation clauses may therefore be agreed, if they remain proportionate and do not unduly restrict competing offers.

If an offeror is unable to obtain full ownership of the target company, the offeror and target company pre-wire certain back-end measures which would allow the offeror to obtain sole ownership of the target company post-offer through a reorganisation. The back-end measures generally take the form of an asset sale or (cross-border) legal merger. Such measures are described in the offer memorandum and put to vote in the general meeting of the target company. The adoption of such resolutions is often an offer condition, as mentioned.

As a result of the back-end measures, the assets and liabilities of the target company are transferred to the offeror or an affiliated company against a consideration which equals the offer consideration, and which is then distributed to the minority shareholders.

It is a common practice in Dutch public offers that offerors secure support from major shareholders through so-called irrevocable undertakings. Under these arrangements, shareholders commit to tender their shares under the offer and, where relevant, to exercise their voting rights in line with the agreement. Although such undertakings are formally required to be unconditional, in practice these are often “soft commitments” that can be terminated. Such provisions allow a shareholder to withdraw if a superior competing offer emerges, if it exceeds the initial offer by an agreed minimum price increase (a so-called “collar”). In this way, irrevocables provide certainty to the offeror while still allowing major shareholders an “out” in the event of a superior offer.

Under Dutch law, it is prohibited to make a public offer for shares that are admitted to listing and trading on a Dutch regulated market, without an offer memorandum which has been approved by the AFM or a competent authority in another member state. Generally speaking, the AFM may approve the offer memorandum, if the target company has its registered seat in the Netherlands or its shares are listed on a Dutch regulated market (specifics apply).

The statutory review period for the AFM is ten business days after receipt of the request for approval of the offer memorandum. In practice, this process is usually extended over several review rounds. In case of an exchange offer which would also require the approval and publication of a prospectus, the review period would be aligned with the statutory review periods for prospectuses under the Prospectus Regulation (EU) 2017/1129.

The Decree on Public Takeover Bids (Besluit openbare biedingen Wft (Wet op het financieel toezicht – Dutch Financial Supervisory Act, mentioned in 4.1 Stakebuilding)) sets out the information that must be included in the offer memorandum, depending on the type of offer, and in the position statement of the target company. For a full offer, the required information includes:

• the statement that the public offer is addressed to all holders of outstanding securities in the categories or classes to which the public offer pertains;
• the tender period and the way holders may offer their securities, also specifying that the tender period may be extended in accordance with the relevant legal provision;
• the proposal to acquire securities in accordance with a specified final price or exchange ratio, listing the securities or, if applicable, the category, categories, class or classes of securities to which the full offer pertains; and
• any additional conditions by the offeror (if applicable).

The AFM shall approve the document if the offer document contains the required information and meets the general requirements, which are:

• all information necessary for a reasonably informed and diligent person to form a responsible opinion on the offer (the “completeness requirement”);
• the information in the offer documents is not inconsistent or contradictory with other information available to the AFM about the target company or the bidder (the “consistency requirement”); and
• it is presented in a manner understandable to a reasonably informed and diligent person (the “comprehensibility requirement”).

The offeror must make the public offer within six business days of the approval of the offer memorandum. The offer period is decided by the offeror and must run for a minimum of eight and a maximum of ten weeks (including extensions). This period commences no earlier than one business day and no later than three business days following the publication of the offer. If a competing offer is announced before expiry of the tender period, the initial offeror may align its timetable with that of the competing offer, regardless of whether an extension has already been used.

The tender period may be extended once at the end of the initial period, if not all conditions have been met or waived. This allows the offeror additional time to satisfy outstanding offer conditions, such as reaching a minimum acceptance level or obtaining merger control clearance. In practice, regulatory and antitrust approvals are often obtained after the announcement of the offer but before it is declared unconditional, and, therefore, such approvals are a common reason for extending the tender period.

In the Netherlands, privately held companies are commonly acquired through a share purchase, where the buyer acquires all shares in the target company. An alternative is an asset deal, in which only specific assets and selected liabilities are transferred, which allows the buyer to “cherry pick” individual assets and liabilities of the target company.

Due diligence is important, covering legal, tax, environmental (including permits and zoning) and commercial aspects. Key considerations include tax exposures, ongoing litigation, customer/supplier contracts, insurance and compliance.

A widely used tool in Dutch M&A transactions is warranty and indemnity (W&I) insurance. This W&I insurance coverage provides protection from loss due to breaches of warranties and the tax indemnity as included in the acquisition agreement. Buyers have additional comfort, while sellers can limit their post-closing liability and release proceeds earlier.

Several specific regulations must be considered when setting up and starting to operate a new company in the energy and infrastructure sector in the Netherlands.

Permitting and environmental impact assessments – projects involving wind, solar, geothermal, and hydrogen energy require permits under the Environmental and Planning Act (Omgevingswet). Large-scale projects must follow a procedure including environmental impact assessments (EIA), public participation, and co-ordination across government levels. The Netherlands Enterprise Agency (RVO) oversees permits, issued by local or central governments based on project size. An EIA (Milieueffectrapportage – MER) may be required, evaluating factors like air quality, noise, and climate impact. Whether mandatory or subject to screening depends on the project’s scale.

Electricity and gas regulation – the upcoming Energy Act (Energiewet), entering into force in 2026, replaces the Electricity and Gas Acts of 1998. It introduces a unified legal framework for electricity and gas production, trading and supply, grid management, metering and consumer protection, aligned with EU directives. Whereas grid operation is, in principle, reserved for designated public grid operators, the production, storage, trade and supply of electricity is, in principle, a free-market activity subject to technical rules and regulations (other than supply to small consumers). The Dutch Authority for Consumers and Markets (ACM) supervises the energy sector and sets special rules regarding, inter alia, grid access, congestion management and grid fee structures, and other rules relevant to grid-connecting projects and companies.

National infrastructure projects – the Multi-Year Programme for Energy and Climate Infrastructure prioritises infrastructure such as high-voltage lines and hydrogen pipelines. The government may accelerate permitting through co-ordinated procedures with grid operators.

The primary securities market regulator for M&A transactions in the Netherlands is the Dutch Authority for the Financial Markets (Autoriteit Financiële Markten, AFM).

On 1 June 2023, the Investments, Mergers and Acquisitions (Security Screening) Act (“Vifo Act”) came into force in the Netherlands. The Vifo Act aims to mitigate risks to national security by subjecting certain investments in vital providers, companies active in sensitive technologies and managers of business campuses to a mandatory filing obligation and prior screening by the Dutch authority for investment screening (BTI: Bureau Toetsing Investeringen), and applies to target companies established in the Netherlands (regardless of the investors’ establishment).

The filing obligation under the Vifo Act applies to the acquisition of a target company (leading to a change of control) with activities relating to one of the following categories:

• vital providers, ie, in heat transport, nuclear energy, air transport, a port area, banking, financial market infrastructure, extractable energy, or gas storage;
• companies active in the field of (highly) sensitive technology, including companies active in the field of dual-use or military goods, as well as companies active in quantum technology, photonics technology, semiconductor technology, or high assurance technology; and
• managers of business campuses.

For companies active in the field of highly sensitive technology, the filing obligation already applies if the transaction would lead to the acquisition or increase of “significant influence”. This applies to persons with certain percentages of voting rights (at least 10%, 20%, or 25%), the ability to appoint or dismiss a director, or otherwise (eg, agreements that indicate significant influence).

There are also sector-specific regimes for companies active in the energy and telecoms sectors, and one for the defence sector is currently in the making.

All investments falling within the scope of the Vifo Act must be notified to the BTI. The system has suspensive effect, which means that a standstill obligation applies. The transaction may therefore not proceed until the BTI has taken a decision or has notified that no assessment decision is required.

The investment test under the Vifo Act was implemented to mitigate risks to national security. Based on the Vifo Act, the authority considers factors such as the ownership structure and track record of the investor, as well as the (direct and indirect) national security situation in the investor’s country of origin.

In the Netherlands, mergers and acquisitions are assessed by the ACM. A proposed transaction must be notified to the Dutch competition authority, if:

• the aggregate worldwide turnover of the undertakings concerned in the previous calendar year exceeds EUR150 million; or
• the individual turnover in the Netherlands of each of at least two of the undertakings concerned was at least EUR30 million in the previous calendar year, provided the proposed transaction does not have an EU dimension.

The ACM will decide within four weeks whether a licence is required. If so, the ACM has 13 weeks to make a decision. Both periods are paused each time the ACM requests information from the parties. The period will resume when the parties have submitted their answers to the questions posed. The system has suspensive effect, which means that a standstill obligation applies.

In recent years, the ACM has on many occasions expressed its concern about so-called “roll-up” strategies, by which a company purchases a string of smaller competitors through separate, unrelated acquisitions. This call has been picked up by the legislature, whereby a legislative initiative bill is currently pending before the House of Representatives (Tweede Kamer) (and the Senate (Eerste Kamer) after that), which is aimed at providing the ACM with the power to assess mergers and acquisitions below the thresholds (to the extent that at least one party to the concentration had a turnover of EUR30 million or more in the preceding calendar year) if it sees potential competition risks (call-in power).

If this bill would be adopted, the ACM would be entitled to (also retroactively) “call-in” such concentrations for review within four weeks of the earliest of the following dates:

• the date on which one of the undertakings involved in the concentration has publicly announced in the Netherlands its intention to bring about the concentration;
• the date on which the ACM becomes aware of the intention to bring about the concentration; and
• six months after the date on which the agreement by which the concentration is brought about.

In the context of a transaction, buyers should keep, in addition to standard compliance with Dutch labour law and the potential impact of the transfer on employment conditions (eg, change of control provisions), primarily the following in mind.

Works Council

Under Dutch law, a company with 50 employees or more is obliged to establish a works council. A works council has the right to render its advice on a contemplated decision to, amongst other things:

• transfer control over the company or a part thereof;
• significant reduction, expansion, or other change in the activities of the company;
• a significant change in the organisation of the enterprise or in the distribution of powers within the enterprise; or
• when commissioning an expert from outside the company to advise on any of the matters the works council has a right of advice on (eg, commissioning an expert who advises the company regarding a contemplated decision to transfer the control over the company).

This means that the acquiring party must consider the involvement and potential advisory rights of both its own works council (if any) and the works council of the target company (if any).

The works council’s right of advice relates to a “proposed” decision. It therefore must be ensured that the works council is requested for its advice in such time that it can still significantly influence the contemplated decision. The advice is not legally binding. Regarding the company proceeding against negative advice of the works council, it must observe a one-month waiting period. During this time, the works council may challenge the decision before the Enterprise Chamber.

Although there is no statutory obligation to publish or disclose the works council’s advice, the works council is authorised to publish its advice if it does not contain any sensitive business information that cannot be disclosed.

SER Merger Code

In the event of a transaction that involves at least one enterprise or a group of enterprises that (i) is registered in the Netherlands, and (ii) regularly has 50 employees or more, the SER Merger Code 2015 may apply to the Transaction.

Should the SER Merger Code 2015 be applicable, then the trade unions concerned (if any), must be provided with information and must be given the opportunity to be consulted in a meeting prior to reaching an agreement on the contemplated transaction, in such manner that the views of the trade unions can be of meaningful influence on the transaction (the authors note that in practice the trade unions rarely make use of this opportunity). In general, this means that the notification is done at the same time as the works council is consulted. The works council must be given the opportunity to take the opinion of the trade unions into account prior to having to render advice.

Together with the trade unions, the SER (the Dutch Social and Economic Council) must be notified, but that notification is merely a formality.

It should be noted that the SER Merger Code 2015 does not have force of law. However, the relevant trade union(s) may file a complaint with the Dispute Committee of the SER in case of non-compliance with the SER Merger Code 2015. If the Dispute Committee rules that the complaint is justified (ie, that the SER Merger Code 2015 was not observed correctly), the Dispute Committee may issue either a public statement concerning the non-observance of the SER Merger Code 2015 or a reprimand.

Transfer of Undertaking

In case of an asset deal and depending on all facts and circumstances, a transaction may qualify as a transfer of (part of an) undertaking (overgang van onderneming), as a consequence of which all employees who are active in (or assigned to) the undertaking will transfer from the seller to the purchaser by operation of law. An important aspect in assessing whether or not there is a transfer of undertaking is if the main assets of the undertaking are transferred. What is seen as the most important asset will largely depend on the nature of the business of the seller (ie, labour intensive or asset reliant/capital intensive).

Under Dutch law, no statutory foreign currency restrictions or requirements apply for payments to be made by a Dutch entity, ie, a Dutch entity can freely pay its debts to a creditor outside the Netherlands either in euros or in another currency.

For sensitive industries, approval, consent or notification of the competent regulatory authorities may be required dependent on the specifics of the M&A transaction.

Grid Access Rules and Grid Fee Methodologies

The ACM has been very active over the last few years in adopting new grid codes that apply to existing and new energy projects, such as grid connection timelines, priority schemes, use-it-or-lose-it rules, mandatory congestion management participation, alternative transport rights and a continuously changing grid fee structure. These rules have material impact on existing and future projects and require a close study to assess business case assumptions and risks in any energy or infrastructure deal. This necessity is further increased by a pipeline of announced changes in the grid codes that will be adopted in the coming years, as well as the Energy Act that will enter into force in 2026.

Collective Heat Act

In 2025, the bill for the Collective Heat Act (Wet collectieve warmte) has been adopted by parliament and has been sent to the Senate for final adoption. The act will replace the existing Heat Act and bring about an integral market design for the heating sector with the purpose of rolling out large-scale district heating networks to replace the existing natural gas-based district heating. Key provisions include mandatory public majority ownership for heat companies, strengthening public initiative and governance, and limiting private or foreign control. It also introduces cost-based tariffs and sets binding greenhouse gas reduction targets for heat suppliers to achieve climate neutrality by 2050. Although the bill for the Collective Heat Act envisages a leading role for the public sector to spearhead the development of district heating grids, it allows private parties to hold a minority stake in publicly controlled heat companies. For M&A transactions, this will impact deal structuring, valuations, and investment strategies, requiring collaboration with public entities.

Over the past three years, the Netherlands has witnessed several legal and regulatory developments in renewable energy, driven by global climate policies such as the Paris Agreement and the European Green Deal. The Dutch Climate Act (Klimaatwet) sets legally binding targets for reducing greenhouse gas emissions by 55% by 2030 and achieving climate neutrality by 2050. The Dutch government outlines measures in five-year Climate Plans, with the latest focusing on emissions reductions across various sectors and emphasising carbon removal strategies such as afforestation and Carbon Capture and Storage (CCS).

The Netherlands aligns its renewable energy goals with EU commitments, particularly under the European Green Deal and directives like RED II and RED III. These directives set minimum renewable energy shares in electricity, heating, and transport, which directly impact Dutch policies. To support renewable energy investments, the Dutch government provides several tax incentives, including the Energy Investment Deduction (EID), Environmental Investment Deduction (MIA) and Environmental At-will Depreciation (Vamil), which allow companies to deduct up to 40% of costs for renewable and energy-efficient technologies and/or up to 50% of at-will depreciation for corporate income tax purposes. A development in the OPEX subsidy scheme “SDE++” – which continues to be available for projects that reduce carbon emissions such as wind, solar, CCS and geothermal – has been that the subsidies will no longer just compensate below-cost market revenues, but instead work more like a contract-for-difference to avoid over-subsidisation. For offshore wind energy, a recent development has been the announcement of a change of the tender set-up, whereby future offshore wind projects will benefit from a contract-for-difference mechanism to enhance the economics and reduce risks. The recent Flex-E subsidies and VAT exemptions for solar panels further incentivise private and corporate renewable energy adoption.

While the focus is on renewable energy, conventional energy remains part of the energy transition. The government promotes a diversified energy mix, expanding nuclear capacity and hydrogen production. Additionally, the modernisation of the electricity grid is a key priority to ensure it can accommodate increasing renewable energy generation while maintaining system reliability.

Due diligence is typically conducted in the context of a friendly offer, whereas in the case of hostile bids such access is generally not granted. The scope and timing are determined by the target’s board of directors, ranging from a few days with limited access to several months in a virtual data room. Confidentiality is essential, as leaks of inside information may trigger immediate disclosure obligations under the Market Abuse Regulation (MAR). The circle of insiders is therefore kept as small as possible, and the bulk of the review is often scheduled just before announcement. Information may only be shared if strictly necessary in the ordinary course of business and subject to confidentiality undertakings, with particular caution required for non-public financial data that materially deviates from market expectations. In transactions between strategic parties, competition law concerns may further require the use of clean terms. While questions may arise as to whether all offerors should receive the same information, unequal treatment is permissible where objectively justified.

Companies must be careful not to violate antitrust laws (specifically the prohibition of cartels) until a transaction has been closed. This is particularly important when exchanging information between competing companies, for example, in the context of a due diligence investigation. It is therefore advisable to only share sensitive information via a clean team, to limit the risk of collusion.

In a friendly takeover, the bid must be announced by way of a public press release, simultaneously provided to the AFM, once the bidder and target have reached agreement, whether conditional or not, and such announcement may not be delayed. The announcement contains the names of the bidder and the target, and (if applicable) the intended purchase price, the exchange ratio (of shares) and the offer conditions.

In case no agreement has been reached or in a hostile process, the offer is supposed to be announced if specific information (ie, the intended purchase price and timeline of the course of the intended public offer) with respect to the bid has been made public.

A mandatory offer must be announced if the 30% voting rights threshold has been reached or crossed and the position is not reduced within one month, unless an exception applies. If the bidder fails to comply, the Enterprise Chamber may order the launch of a public offer at the request of the target company or its shareholders. In case an offer must be made public based on the rules of another EU member state and an announcement in line with Article 17 of the MAR has been made, the offer is made public according to the Dutch rules.

Within 12 weeks of the announcement of the public offer, the offeror must submit a request for approval of the offer memorandum to the AFM. It is not required that this request already contains all the prescribed information for approval of the offer memorandum. In practice, a draft of the offer memorandum is first submitted. The AFM has a statutory review period of ten business days. Once the AFM has provided its comments, the draft is revised and submitted again for review. Once the AFM has no further comments, usually after several review rounds, the final offer memorandum is approved.

Once the offer memorandum is approved, the offeror must make the public offer by making the approved offer memorandum publicly available by means of:

• an announcement in a nationally distributed newspaper;
• a printed document that is available free of charge at the offices of the holder of each regulated market where the securities have been admitted to trading;
• publication on the website of the offeror or the website of the target company;
• publication on the website of the holder of each regulated market where the securities have been admitted to trading; or
• publication on the website of the AFM (if available).

In the case of a stock-for-stock takeover offer, there is no requirement that the offeror’s shares be listed on a particular exchange. However, the offeror is in principle required to publish a prospectus, as securities are offered to the public within the meaning of the Prospectus Regulation. An exemption may apply under Article 1(4)(f) of the Prospectus Regulation, provided that a document is made available which contains information considered equivalent to a prospectus, and that the shares that are used as consideration are fungible with shares that are already listed on an EEA regulated market and the takeover is not a reverse acquisition. As a result, in practice a prospectus or equivalent disclosure document will generally be required when structuring a takeover as a share-for-share exchange if the offeror itself is not already listed on an EEA regulated market.

In an offer memorandum, the offeror must include certain financial information of the target company, to the extent available. This includes:

• (i) a comparative overview of the balance sheet, profit and loss accounts and cash flow statement from the adopted annual accounts over the past three years, as well as the most recent adopted annual accounts;
• (ii) an audit report in connection with the information under (i);
• (iii) any semi-annual financial information which has been made publicly available to comply with regulations implementing the Transparency Directive or similar requirements under the laws of a third country; and
• (iv) a review report of an accountant in connection with the information under (iii), unless the offer memorandum provided describes special circumstances which make it impossible for the offeror to obtain such review report.

In case of a stock-for-stock offer, the information under (i)–(iv) above will also have to be included in relation to the company whose shares are offered as consideration in the offer (but only for the past two years). Should the transaction trigger the need for a prospectus, additional financial information regarding the offeror will need to be included.

In the Netherlands, financial statements must be prepared in accordance with the applicable standards (ie, for listed companies, IFRS EU for consolidated accounts, and Dutch GAAP for non-listed entities).

There is no general requirement for parties to make copies of transaction documents publicly available or to file the full transaction documents. However, certain elements must be described in the offer memorandum which is made public (as previously set out).

Under Dutch law, directors’ duties are not owed exclusively to shareholders but extend to the interests of the company and its business as a whole, including those of employees and other stakeholders. This so-called stakeholder model has been shaped primarily through case law. The Dutch Supreme Court clarified that shareholder interests do not prevail over the broader interests of the company, thereby confirming that the board of directors retains discretion to reject a takeover offer if it believes this better serves the continuity of the enterprise.

Furthermore, the Supreme Court held that directors must act in the best interests of the company and its affiliated enterprises, and that the content of these interests depends on the specific circumstances, considering, among other things, the company’s sector, geographical presence, development stage, and financial health. While the continued success of the enterprise serves as the principal guideline, directors are expected to ensure that the interests of stakeholders are not unnecessarily or disproportionately harmed.

These principles have subsequently been applied by the Enterprise Chamber in takeover contexts. The Enterprise Chamber emphasised that during a public offer process the board must carefully weigh the interests of all stakeholders, rather than simply following the wishes of shareholders. This confirms that in a business combination, the directors’ principal duty is to act in the best interests of the company, meaning the sustainable success of its enterprise, while at the same time exercising due care for shareholders, employees, and other stakeholders involved.

To ensure an independent assessment and safeguard proper decision making, in the Dutch practice, boards of directors may establish special or ad hoc committees in the context of takeover offers or other business combinations, particularly where conflicts of interest are present. There is, however, no statutory requirement to do so, nor does the Dutch Corporate Governance Code provide best practice provisions in this respect.

Under Dutch law, directors’ duties are not owed exclusively to shareholders but extend to the interests of the company and its business as a whole (ie, the corporate interest (vennootschappelijk belang)), as previously indicated. Dutch companies may adopt a one-tier board system, comprising executive and non-executive directors, or a two-tier system, with a separate management (executive) board and supervisory (non-executive) board. Large companies that meet statutory thresholds may be required to have non-executive directors or a supervisory board with substantial powers. Regardless of the structure, all directors are required to perform their duties diligently and in the best interests of the company, considering all relevant stakeholders. In M&A transactions, directors must assess deals, participate in negotiations, and, if necessary, defend the company against unsolicited offers, ensuring decisions are well-informed and balanced.

Shareholder litigation challenging M&A decisions is relatively rare in the Netherlands but can arise in cases alleging breach of fiduciary duty, conflicts of interest, or inadequate disclosure. In energy and infrastructure, the risks are heightened due to critical infrastructure, public policy and security concerns. The Enterprise Chamber may review board conduct and, in exceptional cases, impose interim measures to protect the company or its stakeholders.

In the Netherlands, it is common for boards of directors to engage independent external advisers when considering takeovers or business combinations. These advisers typically include legal counsel, financial advisers and sector-specific consultants, especially in regulated industries like energy and infrastructure. Their role is to help the board fulfil its fiduciary duties by providing expert analysis and support throughout the transaction process. It is customary for financial advisers to provide a fairness opinion as part of their service. This opinion assists directors and supervisory boards in making informed decisions and satisfying their fiduciary responsibilities.