Dutch Merger Control
The Dutch merger control regime is laid down in Chapter 5 of the Dutch Competition Act (Mededingingswet). This chapter is closely modelled along the lines of the EU Merger Regulation (EUMR) Nr 139/2004. Therefore, the Dutch regulator, the Authority for Consumers and Markets (ACM), tends to follow the European Commission’s Consolidated Jurisdictional Notice (OJ C95/1) under the EUMR in most cases.
Various procedural rules are laid down in the Dutch General Act on Administrative Law.
The ACM has published several merger control guidance documents, the most important being its Best Practices on Merger Control Cases (Spelregels bij concentratiezaken). In addition, the ACM issued Remedies Guidelines (Richtsnoeren Remedies 2007) that are closely modelled after the European Commission’s Notice on Remedies (OJ 2008/C 267/1). These guidelines address various procedural and material aspects of remedies. Lastly, although the ACM may deviate from its precedents, it often relies on own-decision precedents and, as such, market definitions used in other cases provide useful guidance as well.
In a specific case, informal guidance from the ACM may be obtained by way of an informal written opinion (informele zienswijze) and/or in pre-notification meetings. An informal written opinion will generally be issued by the ACM if:
The informal written opinion is often given within two weeks after the request has been made, provided that sufficient information is provided to the ACM. The ACM publishes public versions of its informal opinions in anonymised form. With respect to pre-notification meetings, see 3.9 Pre-notification Discussions with Authorities.
The Netherlands does not currently have a general foreign direct investment (FDI) screening mechanism, but such screening mechanism is in the making. A legislative proposal (wet economie en nationale veiligheid) is pending. This new act will have partly retroactive effect as of 2 June 2020 and will apply for investments in providers of:
EU Regulation 2019/452 (OJ L 79I/1) has been in force since 10 April 2019 and allows EU member states to set up a national FDI screening mechanism, as well as enhancing co-operation in this area between EU member states and the European Commission. EU member states must take the necessary steps to ensure that the EU can apply the regulation as of 11 October 2020. The implementing law has entered into force as of 4 December 2020.
A bill for a screening mechanism for the telecom sector, known as the "Act on undesirable control of telecommunication" (Wetsvoorstel ongewenste zeggenschap telecommunicatie), has entered into force as of 1 October 2020.
Undertakings in Healthcare
Since 2014, both national and foreign undertakings are under the obligation to notify a concentration in the healthcare sector to the Dutch Healthcare Authority (Nederlandse Zorgautoriteit or NZa) if at least one undertaking concerned employs 50 people or more to provide healthcare services in the Netherlands, as defined in Article 1(1)(c) of the Act on Healthcare Market Regulation (Wet marktordening gezondheidszorg). The NZa will investigate (in brief) whether the decision to enter into the proposed concentration was the outcome of a thorough decision-making process and whether all the relevant stakeholders (patients, employees, healthcare insurers) have been properly involved in the process.
It is important to note that the approval of the NZa should be obtained before the merger control filing can be submitted to the ACM. Currently, a legislative proposal is pending (Positionering taken NZa). This proposal is aimed at, inter alia, transferring the aforementioned powers from the NZa to the ACM.
The ACM is charged with enforcing Dutch competition rules.
Policies regarding competition are set out and published by the minister of economic affairs. This minister could also eventually grant a permit in the third phase, should the ACM refuse to grant a permit (see 4.6 Non-competition Issues).
Notification is compulsory if a concentration meets the turnover thresholds (see 2.3 Types of Transactions and 2.5 Jurisdictional Thresholds). The Dutch Competition Act does not provide for any exceptions to the obligation to notify. If a concentration meets the turnover thresholds, filing is compulsory.
If the parties involved fail to notify a concentration above the applicable thresholds:
The ACM generally imposes a fine (on the purchaser) where a concentration is (partially) implemented prior to obtaining clearance, even in cases where parties inform the ACM of their own accord of their omission to obtain timeous clearance. In 2013, for example, the ACM imposed a fine on Motorhuis (case 7491) when it notified a concentration which had already been implemented. No more recent precedents have been made public.
Merger control decisions, including decisions imposing penalties, are always published by the ACM.
The merger control regime applies to "concentrations". A concentration is defined in the Dutch Competition Act as:
Internal restructurings and reorganisations are not regarded as a concentration if these do not amount to a change of control, eg, the restructuring takes place within the same economic unit.
It is not only the transfer of shares or assets that qualifies as a change of control. Each factual or legal ability to exercise decisive influence over an undertaking amounts to control. Therefore, other means of control (such as shareholders’ agreements and/or other contractual arrangements) fall under the purview of the Dutch merger control regime, as they do under the EUMR.
The Dutch definition of "control", as laid down in Article 26 of the Competition Act, is highly similar (and in practice often identical) to the European definition of control included in the EUMR and the Consolidated Jurisdictional Notice. The definition reads as follows: “the ability to exercise decisive influence on the activities of an undertaking, either on the basis of factual or legal circumstance”. Deciding whether a party has the ability to exercise decisive influence depends on whether it can influence important strategic decisions such as the appointment or dismissal of senior management, the annual budget, the business plan and/or major investments.
Acquisitions of minority or other interests are only covered by this definition in cases where these amount to a change of control. Again, the same principles as under the EUMR apply.
A concentration requires the prior approval of the ACM if in the preceding calendar year:
Save for the exceptions mentioned below, no notification is required for a concentration below these thresholds. However, pursuant to Article 29(3) of the Dutch Competition Act, the minister of economic affairs may (temporarily) lower the thresholds for certain categories of undertakings by decree.
Lower turnover thresholds apply for undertakings active in the healthcare sector. Such concentrations must be notified and approved by the ACM prior to their implementation if in the preceding calendar year:
Turnover figures must be calculated according to the provisions of Article 30 of the Competition Act, which is highly similar to Article 5 of the EUMR and the Consolidated Jurisdictional Notice. Turnover is defined as income from the supply of goods and services by the business of the legal entity after the deduction of rebates, tax and inter-group turnover. According to an informal opinion of the ACM published in 2011, the turnover may be calculated based on Dutch General Accounting Principles (Dutch GAAP) or International Financial Reporting Standards (IFRS).
The turnover of banks and financial institutions is calculated in a different manner. Pursuant to Article 31(1) of the Dutch Competition Act (and in line with Article 5(3) of the EUMR) the sum of the following revenue sources should be considered as the relevant turnover (after deduction of value added tax and other taxes directly related to these revenue sources):
With respect to pension funds within the meaning of the Dutch Pension Act, the Dutch merger control regime is triggered if:
Sales booked in a foreign currency should be converted using the average rate in the respective preceding calendar year, as published by the Dutch Central Bank (De Nederlandsche Bank) on https://www.dnb.nl/.
The turnover figures of the undertakings concerned are relevant for the purpose of calculating the jurisdictional thresholds. The definition of "undertakings concerned" is similar to the European definition as included in the Consolidated Jurisdictional Notice.
The seller’s turnover does not need to be included with that of the target, provided that the seller shall, after the transaction, not retain (joint) control.
The following turnover must be taken into consideration:
Each change in turnover through acquisitions, divestments and/or business closures after the end of the relevant calendar year prior to the implementation of the transaction ("closing") should be taken into consideration.
Foreign-to-foreign transactions are subject to merger control in the Netherlands if the turnover thresholds are exceeded. Dutch merger control does not require local effect and/or presence. A concentration falls under the purview of the Dutch merger control regime when the turnover thresholds are exceeded.
Acquisitions of Sole Control
In cases of acquisition of sole control, no filing is required in the Netherlands where the sales of either the target entity or the acquiring party in the territory of the Netherlands remain below EUR30 million (or EUR10 million if the lower thresholds for the healthcare sector apply; see 2.5 Jurisdictional Thresholds). Where the turnover thresholds are exceeded, a notification is required irrespective of whether the target company has any assets or other physical presence in the Netherlands.
A notification may also be required if a target – with no sales or assets in the Netherlands, or sales that are below the applicable EUR30 million or EUR10 million threshold – functions as a full-function joint venture (see 2.10 Joint Ventures) and if the turnover figures of the envisaged parent companies exceed the turnover thresholds. However, the substantive test applied by the ACM only relates to the effects on (parts of) the Dutch market.
No market share jurisdictional threshold applies in the Netherlands.
The creation of a joint venture is subject to merger control, provided that the joint venture performs, on a lasting basis, all the functions of an autonomous economic entity (ie, it is a "full-function" joint venture). In determining whether a joint venture is full function or not, in line with the Consolidated Jurisdictional Notice, the following factors are taken into consideration:
Joint ventures that do not qualify as full-function joint ventures do not fall under the purview of the Dutch merger control regime, but their effects on competition need to be assessed under the cartel prohibition, as laid down in Article 6 of the Competition Act.
The general rules for calculating turnover are also applicable to full-function joint ventures. However, in a situation where a target is controlled by an undertaking and as a result of the transaction this target will be controlled by this undertaking and a third undertaking, the turnover of the target is attributed to the turnover of the undertaking that currently controls the target.
Transactions below the thresholds cannot be investigated by the ACM.
Article 5:45 of the General Administrative Law Act (Algemene wet bestuursrecht) provides that the power to impose a fine expires five years after the infringement. Pursuant to Article 82 of the Dutch Competition Act, this time period is interrupted for a period of two years by any act of the ACM aimed at conducting an investigation or proceedings concerning the infringement.
The main rule in this regard is that the (partial) implementation of a transaction must be suspended until clearance has been obtained. There are, however, a few exemptions:
However, the parties are not discharged by such an exemption from their obligation to notify the ACM of the concentration prior to its implementation.
If the parties (partially) implement a transaction before clearance:
Penalties are imposed in practice. In 2013, for example, the ACM imposed a fine on Motorhuis (case 7491) because the standstill obligation had been infringed. There are no more recent precedents of note.
This is not applicable in the Netherlands, apart from the suspension for serious reasons referred to in 2.12 Requirement for Clearance before Implementation.
The Dutch Competition Act does not state whether it is possible to ring-fence or hold separate businesses and/or assets in order to allow global closing. In addition, there is no sufficiently clear case law. The undertakings may, however, consider consulting the ACM informally where they are considering to implement a ring-fencing structure with regard to the Netherlands.
There are no deadlines for notification. Clearance should be obtained prior to the (partial) implementation of the concentration. Consequently, the timetable of the transaction towards closing should include sufficient time for the merger control procedure. If the parties (partially) implement the concentration before the ACM has issued its clearance, the penalties are the same as referred to in 2.13 Penalties for the Implementation of a Transaction before Clearance. Merger control decisions are always made public by the ACM.
A binding agreement is not required prior to notification: a notification may be filed when there is a sufficiently specific intention to close the transaction. A letter of intent containing a certain level of detail, for example, should be enough to file a notification.
While a written contract is not a requirement, in the absence of any document it may be difficult to prove that the intention is sufficiently specific.
A fixed filing fee for both the notification phase (phase I) and permit phase (phase II) is charged. The current fees are EUR17,450 for phase I and EUR34,900 for phase II. The filing fee is still due if the notification is withdrawn at a later stage.
The fee must be paid within six weeks from the date of the invoice.
A notification has to be filed by (one of) the undertakings concerned. All undertakings concerned remain responsible for the filing. However, fines for a failure to notify or closing before clearance (see 2.2 Failure to Notify and 2.13 Penalties for the Implementation of a Transaction before Clearance) may only be imposed on the undertaking(s) acquiring or – in the case of joint control – retaining control.
Like the EU merger control regime, the Dutch merger control regime consists of two phases at the competition authority. Standard forms can be found on the website of the ACM for both phase I and phase II.
The following information should (inter alia) be provided in the notification form for phase I:
The following documents should be submitted in phase I:
A separate request for a permit must be filed for phase II. In brief, the undertakings concerned are required to submit more detailed information about their activities, the (structure) of the market, market shares and market data (including competitors’ market shares), among other things, in the three previous business years.
In phase II, the parties are required to submit strategic internal documents relating to the transaction.
The filing itself must always be drafted in Dutch, although the ACM will, in general but without guarantee, accept annexes and supporting documents (such as economic reports) in English, or even other widely spoken languages.
If the ACM requests further information within five working days of receipt of the notification because the notification is incomplete, a new waiting period will commence once the notification has been completed (Article 38(1) Dutch Competition Act). If the ACM believes that a notification is incomplete or that additional information is required, it will send a request for information to the parties, upon which the waiting period is automatically suspended until all questions have been answered in full (Article 38(2) Dutch Competition Act).
Providing incomplete, inaccurate or misleading information may lead to the imposition of fines of up to EUR900,000 by the ACM, or 1% of the annual worldwide group turnover of the purchaser(s), pursuant to Article 73(1) of the Competition Act, whichever is higher.
In 2009 the ACM imposed a fine of EUR468,000 for providing the ACM with false and incomplete information (decision of 4 August 2009, Refresco Holding BV / Schiffers Food BV, case 6687). There is no knowledge of any more recent precedents.
The Dutch merger control regime consists of two phases at the ACM. There is also a third phase in which the minister of economic affairs can grant the permit (see 4.6 Non-competition Issues).
The ACM must take a phase I decision within four weeks following receipt of the notification, in which it determines whether the concentration requires a permit or not (Article 37(1) Dutch Competition Act). Unproblematic cases (no overlapping economic activities or low combined market share) are mostly cleared within this period in a short-form decision. The Competition Act also provides for automatic clearance if the ACM does not take a decision within the applicable waiting period.
In relation to this waiting period of four weeks, the following must be noted:
Unproblematic cases (without overlap in activities or low combined market share) are mostly cleared in phase I within four weeks. More complicated cases can take substantially longer. This differs greatly from case to case.
If the ACM is of the opinion that it has reason to assume that the concentration may lead to a significant impediment of competition in (parts of) the Netherlands, the ACM will refer the concentration to phase II for further consideration. The parties are required to submit a separate request for a permit in order to initiate a phase II investigation by the ACM. The ACM has 13 weeks to take a decision on such a request (Article 44(1) Dutch Competition Act).
During the phase II investigation, the ACM performs a more thorough economic analysis of the concentration and its effects on the market. The ACM normally issues a statement of objections if it intends to prohibit the concentration. The parties are given an opportunity to respond to such objections and may propose remedies to address the ACM’s competition concerns.
In phase II, the waiting period may be suspended by information requests from the ACM. Such suspension is not automatic (in contrast to phase I) and the ACM must set a deadline for the parties to comply with its information requests (Article 4:5(1)(c) General Administrative Law Act). These decision-making deadlines may also be extended by the ACM, according to Article 4:14 of the General Administrative Law Act.
The parties involved may request to enter into pre-notification discussions with the ACM. Usually the ACM will require a draft notification form for such discussions. Pre-notification discussions with the ACM are confidential.
It is not common to contact the ACM for pre-notification discussions in relatively uncomplicated cases. Such cases are usually notified without prior contact.
It is not common for the ACM to request information from the parties in phase I if there is no overlap of activities. If there is, the ACM regularly sends formal information requests to the parties. Such formal requests suspend the waiting period of four weeks until all questions have been fully answered. The ACM may also informally request further information, which means the delay of four weeks is not suspended.
In phase II, the waiting period may also be suspended by information requests from the ACM. Such suspension is (in contrast to phase I) not automatic and the ACM must set a deadline for the parties to comply with its information request (Article 4:5(1)(c) General Act on Administrative Law).
There are no official short-form, fast-track or other types of accelerated procedures for review available. However, the ACM generally accepts that no market information needs to be submitted if the parties can demonstrate that there are no horizontal or vertical overlaps between their activities under any possible market definition. Furthermore, the ACM usually adopts a short-form decision in cases where there are no major competition concerns.
The majority of cases are cleared through such short-form decisions.
The ACM may be willing to accelerate its review in uncomplicated cases if the parties can demonstrate that there is a clear need for a shorter procedure (eg, due to the financial difficulties of the target).
The ACM may refer a concentration to phase II if it has reason to assume that the concentration may appreciably impede effective competition in (a part of) the Dutch market, in particular as a result of the creation or strengthening of a dominant position. The ACM will issue a clearance decision in phase I if such reasons are absent.
A permit shall be refused in phase II if, as a result of the concentration, effective competition in (a part of) the Dutch market would be appreciably impeded, in particular as a result of the creation or the strengthening of a dominant position. The ACM will issue a permit if this is not the case.
The ACM takes both horizontally and vertically affected markets into consideration. A market is horizontally affected if the economic activities of the parties overlap. A market is vertically affected if a party is active in a product market that is upstream or downstream from a product market in which any other party to the concentration is engaged.
In determining the relevant market, the ACM will first define the product market and subsequently the geographic market:
Dutch competition law does not provide for a de minimis level below which competitive concerns are deemed unlikely. However, only in exceptional cases will concentrations with combined market shares below 30% in horizontal relationships and market shares below 30% at each level of the distribution chain give rise to closer scrutiny.
In general, the ACM will rely on precedents (and, in particular, market definitions) of the European Commission, but is under no obligation to do so.
The ACM may investigate unilateral, conglomerate, portfolio and vertical effects, and the elimination of (potential) competition, in its assessment of whether the concentration appreciably impedes effective competition in (a part of) the Dutch market. In general, it will do so in accordance with the European Commission’s Guidelines on horizontal (OJ 2004/C 31/5) and non-horizontal mergers (OJ 2008/C 265/6).
The ACM usually applies the European Commission’s Guidelines on horizontal mergers (OJ 2004/C 31/5) and as a consequence, the ACM may also take efficiencies into consideration since these can increase competitiveness within a market (paragraphs 76-88 Guidelines). However, the guidelines require that efficiencies must be:
There are no recent precedents because the ACM has accepted an efficiency defence on only one occasion in 2009, and then only in combination with a remedy (decision of 25 March 2009, Ziekenhuis Walcheren/Oosterscheldeziekenhuizen, case 6424).
The ACM is not allowed to take non-competition aspects into account as part of its review process. However, if the ACM refuses to grant a permit, the parties may request the minister of economic affairs to grant a permit in a phase III review. In such a review, the minister will assess whether any important reasons of public interest outweigh the expected impediment to competition.
The phase III proceeding is laid down in Article 47 of the Competition Act. Recently, the Rotterdam district court annulled a ministerial clearance (PostNL/Sandd, ECLI:NL:RBROT:2020:5122). This case also marked the first occasion on which a ministerial clearance was issued in the Netherlands on the grounds of Article 47 of the Dutch Competition Act. On 9 April 2021, the State Secretary for Economic Affairs issued a revised clearance decision.
The substantive test described above also applies in relation to the creation of a full-function joint venture. No special consideration is given to joint ventures with regard to the substantive test applied.
In applying the substantive test to joint ventures, the ACM will also take into account whether or not the concentration may lead to a co-ordination of market conduct between the parent companies of the joint venture.
The ACM may prohibit a concentration under its jurisdiction after a phase II investigation.
The ACM will issue a decision declaring that a permit is required for the concentration if it has reason to assume that the concentration could lead to a significant impediment of competition in (a part of) the Dutch market. The parties are not (yet) allowed to implement the concentration should this be the case. However, the ACM may also attach conditions and obligations to a decision declaring that no permit is required in relation to the concentration.
The ACM will grant a permit in phase II if it concludes that the concentration does not lead to a significant impediment of competition in (a part of) the Dutch market. The ACM may attach conditions and obligations to its permit. If it reaches the opposite conclusion, the ACM will refuse the permit. In such cases, the concentration will be prohibited.
It is possible for the parties to offer remedies in phase I and phase II.
The Competition Act does not provide for a specific legal standard that remedies must meet in order to be deemed acceptable. The remedies should, of course, address the theory of harm.
In 2007 the ACM issued its Remedies Guidelines (Richtsnoeren Remedies 2007), which are closely modelled on the European Commission’s Notice on Remedies (OJ 2008/C 267/1). These guidelines address both the procedural and substantive aspects of remedies.
The ACM makes a distinction between structural and behavioural remedies. A structural remedy, such as the divestment of a business unit, causes a structural change to the market. Pursuant to a behavioural remedy, the merged entity will be obliged to behave, or be prohibited from behaving, in a certain manner prescribed by the remedy (eg, granting third parties access to certain infrastructures under FRAND conditions, keeping its prices below a certain level etc). The ACM generally prefers structural over behavioural remedies.
The ACM may not take non-competition aspects into consideration as part of its review process and, as such, remedies are not required to address non-competition issues.
The parties may themselves propose remedies at any stage of the proceedings. Remedies are often proposed after the ACM has informed the parties of its competition concerns. In phase II proceedings, this usually takes the form of a formal statement of objections (punten van overweging). Remedies may also be discussed with the ACM as early as in pre-notification discussions.
The ACM may not propose remedies on its own motion. The initiative of proposing remedies must come from the undertakings.
Generally, a "state of play" meeting is held with the ACM after it has informed the parties of its competition concerns.
In phase I, the parties may also request a suspension of the waiting period once in order to prepare remedies. Remedies must be submitted in writing at least one week before the expiration of the waiting period in phase I.
In phase II, remedies must be submitted at least three weeks before the expiration of the waiting period. Subsequently, the ACM will market-test the remedies proposed by the parties.
In the case of divestitures, there is a difference between fix-it-first remedies (the concentration may only be implemented following divestiture) and remedies by which the parties are obliged to divest the activities concerned within a given timeframe. In this latter instance, the parties may already implement the main concentration following clearance, if the activities to be divested are placed under the supervision of a trustee that is approved by the ACM. If the activities are not divested within this timeframe, the trustee will organise an auction at which these activities will be sold at no minimum price.
Approval of the purchaser of the divestiture package by the ACM is a condition that is attached to all divestiture remedies. The ACM will reject a purchaser if the identity of the proposed purchaser raises prima facie competition concerns, or where the ACM believes that the proposed purchaser does not have the resources to maintain the divestiture package as a serious competitor to the merged entity. In some cases, the ACM may demand a fix-it-first remedy. In particular, the ACM will require a fix-it-first remedy if it has doubts as to whether a suitable purchaser can be found for the remedy package.
If remedies are not fully complied with, the ACM may impose a fine of up to EUR900,000 or 10% of an undertaking’s group turnover, whichever is higher.
A formal decision (permitting or prohibiting the notified transaction) is always issued to the parties involved.
The ACM publishes public versions of all its merger decisions. Business secrets are omitted from these public versions. The ACM usually issues one page of short-form decisions in unproblematic phase I transactions that are highly unlikely to contain any business secrets.
There are no recent examples of prohibited foreign-to-foreign transactions or examples of foreign-to-foreign transactions in which remedies were required. However, as stated earlier, the ACM has the power to fully enforce in all cases that fall under its jurisdiction.
A clearance decision will only cover ancillary restraints if this is expressly requested by the parties involved. No separate notification is required or possible in relation to ancillary restraints.
Interested third parties (belanghebbenden) that are directly concerned by the proposed concentration have the right to submit observations to the ACM during the review process. The ACM may also contact third parties (eg, customers, competitors, suppliers and trade associations) in the context of its market investigation.
In addition to the right to submit observations, interested third parties have the same rights of appeal as the undertakings concerned. In phase II cases, interested third parties are also granted access to the ACM’s case file.
The ACM may contact interested third parties (eg, customers, competitors, suppliers and experts) out of its own motion, for example, during its market investigation or when market-testing proposed remedies. It is unlikely that the ACM will contact third parties in unproblematic transactions (in particular, in cases without overlap of activities between the parties or where the parties have a very low combined market share).
The ACM usually approaches third parties by telephone, written questionnaires and/or by email.
Pre-notification discussions with the ACM are confidential and the ACM does not publish any information regarding such discussions. The receipt of a notification and the receipt of a request for a permit (together with a short description of the undertakings concerned and a description of the proposed transaction) is announced by the ACM in the State Journal and on its website.
The ACM will ensure that (genuine) business secrets are kept confidential.
The ACM is a member of the European Competition Network (ECN) and the International Competition Network (ICN). It co-operates with other competition authorities with respect to general policy matters as well as in the context of specific transactions. The ACM is not obliged by law to ask for permission from the parties concerned to share information with other jurisdictions, but in its "Best practices on merger control rules" (Spelregels bij concentratiezaken), the ACM observes that it will normally liaise with the parties about the exchange of information.
Both in phases I and II the parties have the right of appeal in relation to the ACM’s decisions. Appeals must be lodged with the administrative law section of the District Court of Rotterdam (Rechtbank Rotterdam – Sector Bestuursrecht), with the possibility of a further appeal for the parties and the ACM to the Trade and Industry Appeals Court (College van Beroep voor het bedrijfsleven) in The Hague.
An appeal must be lodged within six weeks of the ACM's decision. It is possible to submit the reason for the appeal at a later stage. The competent court will, in such cases, set a time limit within which grounds for the appeal must be submitted.
An example of a successful appeal against one of the ACM’s merger control decisions was the annulment in 2016 by the Trade and Industry Appeals Court of a decision made by the ACM in which it prohibited a concentration in the biscuit industry (ECLI:NL:CBB:2016:23).
Third parties have the same right of appeal as the undertakings concerned if they qualify as interested parties (belanghebbenden) under Dutch law. To date, however, there have been no successful appeals in which third parties have challenged an ACM clearance decision.
As indicated in 1.2 Legislation Relating to Particular Sectors, certain concentrations in the healthcare sector also require the prior approval of the Dutch Healthcare Authority. There is a bill pending pursuant to which the ACM will become the competent authority in relation to this procedure as well.
Although the ACM has imposed fines in the past for infringements of the standstill obligation, there have been no known decisions in this regard since 2013.
In recent years, the ACM has prohibited a concentration between hospitals (2015, Stichting Albert Schweitzer Ziekenhuis/Rivas Zorggroep; case 14.0982.24) and a concentration in the biscuit industry (2012, Bolletje/Continental Bakeries; case 7321). The latter prohibition decision was, however, later annulled in court (ECLI:NL:CBB:2016:23).
On 5 September 2019, the ACM prohibited a merger creating an effective monopoly in the Dutch postal sector (case ACM/19/035460, PostNL/Sandd). However, this decision was overruled on 27 September 2019 by the Deputy Minister of Economic Affairs for reasons of public interest. Subsequently, the Rotterdam district court annulled this ministerial clearance (PostNL/Sandd, ECLI:NL:RBROT:2020:5122). On 9 April 2021, the State Secretary for Economic Affairs issued a revised clearance decision.
The ACM has imposed remedies in a substantial number of cases, for example in 2016 in Brocacef/Mediq (case 15.0849.24).
The ACM has no (known) enforcement record for imposing fines or remedies in relation to foreign-to-foreign transactions or for prohibiting foreign-to-foreign transactions. It must however be observed that it has the power to do all of the foregoing in relevant cases that come under its jurisdiction.
In the past, the ACM was criticised by politicians for being too permissive in allowing concentrations between healthcare providers. In December 2017, the ACM produced a research paper that indicated that many hospitals that had merged in the past few years had raised their prices. The ACM therefore announced that it would be stricter on future mergers in the hospital sector and published a paper in which it outlined how it would assess concentrations between hospitals (Werkwijze analyse productmarkten in de MSZ). The ACM now scrutinises all cases in this sector very closely, even if these do not raise serious competition issues at first sight.
Merger Control in the Healthcare Sector
The merger control procedure in the healthcare sector can be very time-consuming for this reason. This critical approach towards healthcare mergers is evidenced by the large number of cases ending up in Phase II proceedings. Four good examples are:
Regarding bullet point two, based on more reliable data which became available in phase II, the ACM concluded that the combined market share of the parties was significantly lower than initially known in phase I. In addition, the ACM stated that regular non-teaching hospitals are full-fledged competitors of the parties for most types of treatments (decision of 5 September 2017, case 17.0166.24).
The ACM has concerns beyond healthcare sector. In Post NL/Sandd, (case ACM/19/035460), the ACM prohibited – following a Phase II investigation – the acquisition of Sandd by PostNL, which would create a (near) monopolist in the Dutch postal market. Following this prohibition decision, the Dutch government cleared the concentration (for the first time in history) in a ministerial review proceeding (phase III). The transaction concerned the acquisition of Sandd by PostNL, the largest postal operator in the Netherlands.
Sandd is, in practice, PostNL’s largest and only sizeable competitor in the Dutch market. The ACM had concerns about the position of the merged entity on the market for business mail. PostNL would be a (near) monopolist after the acquisition as PostNL and Sandd are the only two national operators on this market.
This could allow the merged entity to increase its prices on this market and/or reduce the quality of its services. Hence, the ACM decided that a Phase II investigation was required. In its Phase II decision, the ACM decided not to grant a permit to allow the concentration, as its projections indicated that (without Sandd exercising competitive pressure) PostNL could increase its prices for business mail by 30% to 40% after the acquisition.
In addition, the ACM expects that the acquisition would lead to higher prices for consumer mail. Since the parties maintained that the acquisition was necessary for maintaining a postal delivery system that is efficient and viable, the ACM also considered that any such benefits of the acquisition would fail to offset the consequences of the elimination of competition between PostNL and Sandd.
Revised decisions and a second phase II investigation
However, in September 2019, The Dutch Deputy Minister of Economic Affairs granted – for the first time in history – a permit on the basis of reasons of general public interest. The Deputy Minister attached a number of conditions to the clearance. For example, the merged entity's pricing should be based on actual costs. This decision was subsequently annulled by the Rotterdam district court (PostNL / Sandd, ECLI:NL:RBROT:2020:5122ECLI:NL:RBROT:2021:2274). On 9 April 2021, the State Secretary for Economic Affairs issued a revised clearance decision.
After a lengthy phase II investigation, the ACM cleared the acquisition of Dutch tour operator Corendon by its rival Sunweb on 26 October 2020. The ACM concluded that, after the acquisition, sufficient competition will remain on the market, although the number of large tour operators would be reduced from three to two. Apart from Sunweb and Corendon, TUI would remain on the market as a major competitor, and several smaller tour operators also offer package tours. The ACM’s investigation indicated that consumers looking for beach holidays consider several countries, and that price is often the deciding factor. Sunweb and Corendon proved not to be each other’s main competitors. Smaller competitors and new entrants remain able to exert competitive pressure alongside TUI. In addition, a large group of consumers consider purchasing individual components (plane tickets and hotel reservations) separately as an alternative for package holidays. See the decision of 26 October 2020 in case ACM/20/041207.
The impact of COVID-19
The COVID-19 crisis erupted during the assessment of this acquisition. The ACM held that it is difficult to predict what the effects of the crisis will be This is why the ACM only looked at the market situation as it was immediately prior to the outbreak of the pandemic. On 12 November 2020, Sunweb decided to abandon the transaction. Attempts by Corendon to enforce the transaction in court have thus far been without success.