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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. Other authorities that also require merger filing or may prohibit transaction
    (Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
show/hide chapter
  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
show/hide chapter
  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
show/hide chapter
  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
NETHERLANDS

Sarah Beeston
Partner

beeston@vandoorne.com

Tel: +31 20 6789650 (direct line)

Tel: +31 6 22697849 (mobile)

Cees Jan de Boer
Counsel

boerC@vandoorne.com

Tel: +31 20 6789322 (direct line)

Tel: +31 6 11388522 (mobile)

Dr. Pim Jansen
Associate

jansenP@vandoorne.com

Tel: +31 20 6789277 (direct line)

Tel: +31 6 11388580 (mobile)

Nina Korstenbroek
Associate

korstenbroek@vandoorne.com

Tel: +31 20 6789291 (direct)

Tel: +31 6 21713060 (mobile)

New regulation proposed

The parliament is expected to adopt a law in the course of 2020 introducing a requirement that acquisitions in the telecommunications sector are notified to the Minister of Economic Affairs ad Climate Policy. The notification requirement will exist independently from and in addition to any notification required to the ACM if the thresholds are met.

Furthermore, a bill aiming to transfer the sector specific merger control tasks of the Dutch Healthcare Authority (NZa) to the ACM has been pending before parliament since April 2016. If and when this will be adopted is unclear.

Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. The Dutch Competition Act of 1998 ("DCA") includes in chapter 5 (Articles 26 to 49) merger control provisions. In drafting these provisions, the legislator closely followed the EU Merger Regulation.

2) Which authorities enforce the merger control regulation?

The merger control provisions are enforced by the Authority for Consumers and Markets ("ACM"). The board of the ACM is an autonomous administrative authority while the ACM's employees are employed by the Ministry of Economic Affairs.

Decisions of the ACM can be appealed before the District Court of Rotterdam whose judgments can be appealed before the Trade and Industry Appeals Tribunal. 

3) Relevant regulations and guidelines with links:

Chapter 5 of the DCA which contains the merger control rules should be read in conjunction with the General Administrative Law Act which contains rules on legal procedure. (Temporary) amendments to the general rules and guidance on their application are contained in various general administrative measures, regulations, guidelines and policies. Links to the relevant regulations and guidelines are listed below:

General legislation

Original Dutch version

Unofficial translation

Mededingingswet

Dutch Competition Act (Not available in English)

Algemene wet bestuursrecht

General Administrative Law Act (older version, published on the ACM website on 28 February 2013)

General Administrative Measures and Ministerial regulations and policy rules 

Original Dutch version

Unofficial translation

Besluit tijdelijke verruiming toepassingsbereik concentratietoezicht op ondernemingen die zorg verlenen

Decree temporarily widening the scope of merger control in relation to companies that provide care (Not available in English)

 

Regeling gegevensverstrekking Mededingingswet

Regulation on the provision of data under the Competition Act (Not available in English)

 

Beleidsregel concentraties van zorgaanbieders en zorgverzekeraars

Policy rule on mergers of healthcare providers and health insurers (Not available in English)

 

Boetebeleidsregel ACM 2014

2014 ACM Fining policy rule

ACM guidelines and policies

Original Dutch version

Unofficial translation

Beleidsregel ACM beoordeling horizontale concentraties

ACM Policy on the review of horizontal mergers (Not available in English)

 

Richtsnoeren remedies 2007

2007 Remedies guidelines (Not available in English)

 

Uitvoeringsregeling ACM pensioenfondsen

ACM implementing regulation on pension funds (Not available in English)

ACM Uitvoeringsregel verkorte afdoening

ACM implementing rules on short-form decisions (Not available in English)

Spelregels bij concentratiezaken

Best practices on merger control cases (Not available in English)

Notification forms

Formulier melding concentratie en formulier aanvraag vergunning   

Merger notification form and  Merger license application form (Not available in English)

4) Does general competition regulation apply to mergers or ancillary restrictions?

The prohibition of restrictive agreements applies to cooperative aspects of joint ventures which qualify as a merger. Otherwise and in accordance with Article 10 DCA, the general prohibition of restrictive agreements in Article 6 DCA does not apply to mergers. According to Article 24 DCA, a merger does not qualify as abuse of dominance.

Restrictions which qualify as ancillary restraints because they are directly related to and necessary for a merger (Article 10 DCA) are not caught by the cartel prohibition. In the 'standard' notification form provided by the ACM the notifying parties are required to identify ancillary restraints. They may (but are not obliged to) request the ACM to declare such restraints as ancillary to the transaction and therefore compatible with Article 10 DCA. 

5) May an authority order a split-up of a business irrespective of a merger?

No. The ACM may accept remedies offered by parties, which can include divestment remedies, as a condition for approval of a merger, but the ACM does not otherwise have the power to order divestment by a company of part of its business.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

In addition to any applicable obligations for merger filing to the ACM, the following sector specific merger filing obligations exist. 

Healthcare

A merger involving an undertaking active in the healthcare sector with at least 50 personnel providing care is subject to the prior approval of the Dutch Healthcare Authority (NZa) in addition to approval from the ACM. Such transaction can only be notified to the ACM after approval by the NZa.

Electricity production

Article 86f of the Electricity Act 1998 requires parties to any transaction involving a production installation with a nominal electric capacity of more than 250 MW (megawatt) or an undertaking that manages such production installation to notify the transaction to the Minister of Economic Affairs and Climate Policy, at least four months before the proposed change of control. The Minister may prohibit or impose regulations in respect of such a change of control on the grounds of public security or security of supply. Legal acts performed in violation of the notification obligation can be annulled by a court decision. 

If the thresholds of the DCA are met notification to the ACM is required in addition to the notification to the Minister.

LNG installations

Article 66e of the Gas Act requires parties to any transaction regarding an LNG (Liquefied Natural Gas) installation or an LNG company to notify the transaction to the Minister of Economic Affairs and Climate Policy, at least four months before the proposed change of control. The Minister may prohibit or impose regulations in respect of such a change of control on the grounds of public security or security of supply. Legal acts performed in violation of the notification obligation can be annulled by a court decision. 

If the thresholds of the DCA are met notification to the ACM is required in addition to the notification to the Minister.

Telecommunication

Parliament is expected to adopt a law in the course of 2020 introducing a regime under which acquisitions of "predominant control" leading to relevant influence in the telecommunications sector must be notified to the Minister of Economic Affairs and Climate Policy  

The draft law provides that there is predominant control if, after the acquisition, the acquiring party:

  1. alone or together with persons with which it is in consultation directly or indirectly holds at least 30 percent of the votes in the general meeting of a legal entity;
  2. whether or not by agreement with others, alone or together with persons who act in concert, can appoint or dismiss more than half of the directors or supervisory directors of a legal entity;
  3. holds one or more shares with a special statutory right regarding control;
  4. has a branch office, which is a telecommunications provider;
  5. becomes, as a partner, fully liable to creditors for the debts of the company acting under its own name, or
  6. becomes sole owner.

Relevant influence in the telecommunications sector exists when abuse or deliberate failure of the telecommunications party can lead to:

  1. a wrongful breach of the confidentiality of the communication, or an interruption of the internet access service or telephone service of more than a specific number of end users which is still to be determined;
  2. an interruption in the availability or verification of a significant part of the services and applications provided over the Internet;
  3. an interruption of availability, reliability or confidentiality of a product or service for the purpose of a public task in the fields of national security, defense, the maintenance of the rule of law or assistance, or
  4. other serious consequences with regard to the continuity of services by a telecommunications party or the confidentiality of communications.

Such an acquisition needs to be notified at least eight weeks before the intended implementation date. In case of a public offer for a listed telecommunications party, the notification should be made at the latest simultaneously with the announcement of the public offer.

The Minister will decide within eight weeks of receipt of the notification. If further investigation is required, the Minister may extend the term by a further six months. The term is suspended with effect from the day on which the Minister requests additional information until the day on which the requested information is provided.

The draft law provides that the Minister of Economic Affairs and Climate Policy may prohibit or impose regulations in respect of an acquisition of predominant control on the grounds that it could lead to a "threat to the public interest". A transfer of predominant control without prior notification and approval is void, unless it is made through a stock exchange. 

If the thresholds of the DCA are met notification to the ACM is required in addition to the notification to the Minister. 

7) Are any parts of the territory exempted or covered by particular regulation?

There are no exceptions for any part of the Dutch territory.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

If the thresholds discussed under topic 14 and 15 are met, merger filing is mandatory. 

Types of transactions to file – what constitutes a merger

9) Is there a general definition of transactions subject to merger control?

On the basis of Article 27 of the DCA, the following transactions qualify as a merger: 

  1. the merging of two or more previously independent undertakings, or  
  2. the direct or indirect acquisition of control over an undertaking or parts thereof, by one or more natural or legal persons who already have control over at least one undertaking, by means of the acquisition of shareholdings in the capital or of assets, pursuant to an agreement or in any other way, or
  3. the establishment of a full function joint venture performing on a lasting basis all the functions of an autonomous entity.

10) Is "change of control" of a business required?

In general a transaction will only be considered to be a merger if it leads to a change of control over a business. The merger of two or more previously independent undertakings and the establishment of a full function joint venture also constitute mergers which, if they meet the thresholds require a merger filing with the ACM.

11) How is “control” defined?

In Article 26 DCA "control" is defined as the ability to exercise decisive influence over the activities of an undertaking, either on the basis of factual or legal circumstance

Control may be held by several persons or businesses jointly. Establishment of joint control as well as changes in the group of owners with a controlling interest constitute a change of control. Consequently, there is a change of control when a business goes from 50/50 ownership to being solely controlled by only one of the existing owners, and when one of the existing owners sells its shares to a third party.

Joint control may be established between a majority and a minority shareholder or between minority shareholders on the basis of veto rights regarding decisions that are essential for the strategic operation of the business..

The interpretation of "control" is similar to that of the European Commission in its Consolidated Jurisdictional Notice.

12) Acquisition of a minority interest

The acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

The acquisition of a minority interest which gives rise to de jure control as a result of veto rights or de facto control as a result of other factual circumstances is subject to merger control by the ACM.

13) Joint ventures/joint control – which transactions constitute mergers?

The acquisition of joint control or change in the jointly controlling parties and the creation of a full function joint venture all constitute a merger. Other forms of joint venture do not constitute a merger subject to merger control and such joint ventures should be assessed for compliance with the prohibition of restrictive agreements in Article 6 DCA.

Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

Parties to a transaction are required to make a notification when:

  1. the combined worldwide turnover of the undertakings concerned in the preceding calendar year exceeded EUR 150m, and
  2. at least two of the undertakings concerned had in the preceding calendar year a turnover of at least EUR 30m in the Netherlands.

Even if it meets the above thresholds, a transaction falls outside the jurisdiction of the ACM if it meets the thresholds for notification to the European Commission.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

Pension funds thresholds

Article 29(4) DCA contains the following specific thresholds for mergers involving pension funds:

  1. the combined (Global) amount of 'gross premiums' written by the undertakings concerned in the preceding calendar year exceeds EUR 500m, and 
  2. at least two of the undertakings concerned each received at least EUR 100m of this amount from Dutch residents.

Healthcare thresholds

The following lower thresholds apply to transactions in the healthcare sector: 

  1. at least two of the undertakings concerned each achieved in the preceding calendar year a turnover in the Netherlands of EUR 5.5m or more from the provision of healthcare;
  2. the combined worldwide turnover of the undertakings concerned in the previous calendar year exceeded EUR 55m, and
  3. at least two of the undertakings concerned each achieved in the preceding calendar year a turnover in the Netherlands of at least EUR 10m.

In addition to the obligation to notify healthcare transactions to the ACM, based on Article 34(2) DCA and Article 49a(1) of the Healthcare Market Regulation Act such transactions need to be notified to Dutch Healthcare Authority (NZa), when:

  1. at least one of the parties involved is a healthcare provider, and
  2. the healthcare provider (or at least one of them) engages at least 50 people in the provision of healthcare. 

Only following clearance of the NZa it is possible to notify the transaction to the ACM. The duty to notify healthcare mergers to the NZa applies independently of any ACM merger notification requirement. Even if the ACM thresholds are not met, notification to the NZa might be mandatory.

A bill aiming to transfer the merger control tasks of the NZa to the ACM has been pending before parliament since April 2016.

16) Rules on calculation and geographical allocation of turnover

The relevant turnover is the net turnover of the previous calendar year calculated in accordance with the Dutch civil code. 

In determining whether the notification thresholds are met, the following parties are relevant: 

  1. Merger: the merging parties;
  2. Acquisition of control: the party or parties acquiring control and the target undertaking;
  3. Creation of a full function joint venture: the jointly controlling parent companies. (In case of change of control over an existing full function joint venture, the joint venture itself may also be considered a separate participating undertaking with respect to the thresholds.)

In case of a merger or the creation of a joint venture the relevant turnover to be attributed to the undertakings concerned is the total turnover of the whole group of which the undertaking concerned is a part including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. The turnover a joint venture has with third parties must be divided equally between the controlling owners irrespective of their share in the capital and the actual distribution of profit; i.e., if the shares in a joint venture are divided 60/40 between two participants who exert joint control, half of the turnover of the joint venture must be attributed to each participant. In the case of the acquisition of control, the total turnover of the buying group or groups and the turnover of the target, but not the sellers, are taken into account. 

Turnover is allocated geographically in accordance with the European Commission’s Consolidated Jurisdictional Notice. Consequently turnover is generally (subject to a number of exceptions) allocated to the country where the customer is situated.

17) Special rules on calculation of turnover for particular businesses

There are special rules on calculation of turnover for financial services companies, insurance companies and pension funds. 

Credit and financial institutions

For credit and financial institutions the turnover calculation rules correspond to those provided for in Article 5 of the EU Merger Regulation. This means that turnover is replaced by the sum of interest income and similar income, income from securities, commissions receivable, net profit on financial operations, and other operating income. 

Insurance companies and pension funds

For insurance companies and pension funds it is not the turnover, but the amount of 'gross premiums' written by the undertakings concerned that determines whether the thresholds are met.

18) Series of transactions that must be treated as one transaction

Article 30(2) DCA provides that two or more acquisitions, which take place within a period to be determined by the ACM and which are interdependent or economically linked, are considered as one transaction, which takes place on the day of the last transaction. From case law it is clear that this only applies if the purchaser is the same party.

From Article 30(2) DCA it follows that the ACM has the power to analyse on a case-by-case basis what period is appropriate for the determination of whether an acquisition constitutes a single independent transaction or forms part of a series of transactions.

Exempted transactions and industries (no merger control even if thresholds ARE met)

19) Temporary change of control

Merger notification is not required for atemporary change of control unless it is uncertain whether the change of control is temporary. Such uncertainty could arise where a party intends to resell shares shortly after acquiring them but the subsequent resale is subject to further approval by a competition authority or by the onward purchaser.

20) Special industries, owners or types of transactions

From Article 28 DCA follows that there are situations in which the acquisition of a controlling interest does not constitute a notifiable merger despite the thresholds being met. This is the case where:

  1. credit institutions or other financial institutions and insurance companies, whose normal activities include transactions and dealings in securities for their own account or for the account of others, hold on a temporary basis securities which they have acquired in an undertaking with a view to reselling these, provided that they do not exercise the voting rights in respect of those securities in such a way as to influence the competitive behavior of that undertaking, or provided they exercise such voting rights only to prepare for the sale of those securities and that any such sale takes place within one year of the date of acquisition; 
  2. control is transferred onto a professional insolvency administrator or liquidator who has powers under applicable insolvency legislation (Act on Financial Supervision); or
  3. venture capital undertakings acquire participation interests in capital, including  of a joint venture, provided the voting rights pertaining to the participating interest are exercised only to maintain the full value of these investments.

As discussed under topic 15, alternative notification thresholds apply to mergers in the healthcare sector and pension fund mergers. 

21) Transactions involving only foreign businesses (foreign-to-foreign)

There are no specific rules regarding foreign-to-foreign transactions. If the thresholds of the DCA are met, a proposed transaction involving only foreign businesses will need to be notified to the ACM.

22) No overlap of activities of the parties

Transactions with no overlap of the parties' activities are not exempted from notification. If the thresholds of the DCA are met, the transaction needs to be notified to the ACM.

23) Other exemptions from notification duty even if thresholds ARE met?

Apart from the situations discussed under topic 20, no exemptions from the notification duty exist.

It should, however, be noted that as a consequence of the EU "one-stop-shop" principle, Dutch merger control provisions do not apply and the ACM therefore has no jurisdiction if the thresholds for EU merger control are met, unless the European Commission has referred the merger to the ACM. 

Merger control even if thresholds are NOT met

24) May a merging party file voluntarily even if the thresholds are not exceeded?

No, there is no voluntary filing option under Dutch merger control. The ACM will only handle a merger notification if the applicable thresholds are met or if a referral from the European Commission allows it to deal with the notification.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No. The ACM can only assess and take action in respect of mergers meeting the notification thresholds or in the case of a referral from the European Commission (see topic 27 and 28).

Referral to and from other authorities

26) Referral within the jurisdiction

The ACM has exclusively jurisdiction within the Netherlands to review all mergers meeting the thresholds provided for in the DCA. 

For healthcare mergers approval of the NZa is required before the merger can be notified to the ACM (see topic 15). 

27) Referral from another jurisdiction

The ACM cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

Pre-notification

Article 4(4) EU Merger Regulation provides that the parties to a transaction which meets the thresholds for notification to the European Commission may request the Commission to refer the merger or a part of it to the ACM. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the ACM will handle the Dutch aspects.

Post-notification

According to Article 9 EU Merger Regulation a member state may – on its own initiative or upon the invitation of the European Commission – request the European Commission to refer a notified merger or a part of the notified merger to it. Referral on the basis Article 9 EU Merger Regulation is possible if and insofar as a merger threatens to significantly affect competition on a market within the Netherlands, which presents all the characteristics of a distinct market and which does not constitute a substantial part of the common market.

28) Referral to another jurisdiction

Pre-notification

If the thresholds for merger notification are met in at least three EU member states, the notifying parties may request the European Commission to accept jurisdiction so that the parties do not need to notify various national authorities (see topic 29).

Post-notification

According to Article 22 EU Merger Regulation, the ACM may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation but which affects trade between EU member states and threatens to significantly affect competition in the Netherlands. Such a request shall be made within 15 working days of the date on which the merger was notified to the ACM. The European Commission shall immediately notify the other EU member states of the request and will decide whether to examine the merger within 25 working days after this notification.

Besides referral to the European Commission, a merger cannot be referred to the competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the ACM

In accordance with Article 4(4) EU Merger Regulation, if a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the ACM, provided that the merger may significantly affect competition in a distinct market in the Netherlands. If the ACM does not oppose such a referral, the European Commission may decide to refer the merger in whole or in part. The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also – on its own initiative or upon request from the ACM – decide to refer a merger that has already been notified to the European Commission to the ACM. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the ACM

If a merger is not subject to EU merger control but is subject to merger control in the Netherlands  and at least two other EU member states, based on Article 4(5) EU Merger Regulation the parties may request the European Commission to assess the transaction so that they do not need to notify the transaction to various competition authorities. 

If none of the relevant authorities opposes the referral, the European Commission will handle the merger notification and no notifications are needed in the Netherlands or any other EU member state. If any of the national authorities in question opposes the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

There are no rules that determine when a merger notification must be filed. The only requirement is that the parties may not implement the transaction before notification to and approval of the ACM.

In general parties can notify the ACM of a proposed merger as soon as the intention to engage in the transaction is sufficiently concrete, for instance on the basis of a letter of intent or the announcement of a public offer. There is no need for a fully negotiated and signed purchase agreement. However, the parties may have reason to delay notification until the purchase agreement. This may be preferable if early publicity could have an effect of the smooth conclusion of the deal. Shortly after notification the ACM makes a public announcement of the notification of the intended merger in order to give third parties the opportunity to express their objections (see topic 48).

31) Pre-notification consultations

In its Best practices on merger control cases  the ACM invites parties to request a prenotification meeting or an informal written opinion. This is particularly useful if the parties have questions, for example concerning the level of detail of the information they are to supply or the validity of their proposed definition of the relevant market.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

An acquisition of securities on a stock exchange as a result of a public takeover bid may be implemented before the ACM’s approval has been obtained, provided that the merger is notified to the ACM without delay and that the acquiring party does not exercise its voting rights arising from the acquired stocks (see topic 37).

33) Forms available for completing a notification

There is a standard form available for the notification phase (phase I) and the license phase (phase II). 

34) Languages that may be applied in notifications and communication

The filing can only be submitted in Dutch. If submitted documents are in another language, the ACM can request the parties to complete the notification documentation with a translation of those documents.

35) Documents that must be supplied with notification

The following documents must be supplied with the notification:

  1. the most recent annual accounts and annual reports of the undertakings concerned; 
  2. dated copies of the most recent transaction documents;
  3. a written document proving the representative authority of the designated contact person(s); and
  4. market studies of the relevant market(s) that the parties used when preparing the transaction.

36) Filing fees

For a decision on a notification (phase I proceedings) the ACM charges a fee of EUR 17,450. 

The fee for a decision on a licence application (phase II proceedings) is an additional EUR 34,900. 

Any later withdrawal of the notification by the parties does not release the parties from their obligation to pay the fee. 

Implementation of merger before approval – “gun jumping” and “carve out”

37) Is implementation of the merger before approval prohibited?

Yes, it is prohibited to implement a merger prior to receiving approval from the ACM. This so-called 'stand still obligation' follows from Article 34(1) DCA (for phase I proceedings) and Article 41(1) DCA (for phase II proceedings).  

If the ACM does not decide on the merger within the legal deadline (which can be extended by requests for information sent by the ACM to the parties), the merger is deemed to have been cleared and can be implemented in accordance with Article 37(5) DCA and Article 44(1) DCA.

The standstill obligation does not apply in the following situations:

  1. The implementation of a public bid, as long as the ACM is notified immediately after the transaction has been implemented, and the acquiring party does not exercise its voting rights in accordance with Article 39(1) DCA; or
  2. Upon request of the parties, the ACM may grant an exemption from the standstill obligation in case of 'significant reasons' in accordance with Article 40(1) DCA (phase I) and Article 46(1) DCA (phase II). Such significant reasons can include an argument that a delay would cause irreparable harm for example the bankruptcy of the target.

38) May the parties get permission to implement before approval?

The ACM can, upon request of the parties, grant an exemption from the standstill obligation for 'significant reasons', such as an imminent bankruptcy or a suspension of payment. 

39) Due diligence and other preparatory steps

There are no specific rules or guidelines published by the ACM as concerns due diligence or other preparatory steps. However, due diligence and preparatory steps should be conducted in compliance with the general competition rules, it should not involve the exchange of commercially sensitive information except to the extent necessary to agree on the transaction. If commercially sensitive information is exchanged, measures should be taken to limit the group of people with access to such information. They should also not be people who take decisions on the daily business or commercial strategy. 

Preparatory steps are not permissible if they effectively comprise a partial implementation of the transaction. That would comprise illegal "gun jumping" in breach of the standstill obligation.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may discuss or provide each other with veto rights concerning any decisions in their respective businesses. Such veto rights will generally be incompatible with the standstill obligation. 

41) Implementation outside the jurisdiction before approval – "Carve out"

The DCA does not provide for the possibility of a carve-out. There are no exceptions or exemptions to the standstill obligation apart from those mentioned under topic 37 and 38. 

42) Consequences of implementing without approval/permission

It follows form Article 74 DCA that if parties fail to notify (correctly), the ACM can impose an administrative fine up to a maximum of EUR 900,000 or 10% of the annual turnover of the undertaking, whichever is higher. 

The fine can be imposed on each party which is responsible for filing the notification. The ACM can also impose an order subject to a penalty, compelling the parties to notify (correctly). 

Failure to notify can also lead to the transaction being void, since under Dutch law the performance of a legal act in conflict with a mandatory statutory provision leads in principle to nullity of that legal act.

The process – phases and deadlines

43) Phases and deadlines

Phase 

Duration/deadline 

Pre-notification phase:

Pre-notification contact with the ACM is not required. While the DCA does not provide for pre-notification contact in its Best practices for merger control cases, the ACM invites parties to request a prenotification meeting or an informal written opinion. 

No set duration or deadline.

Phase I:

After the ACM has received the notification, Phase I will start. The ACM will either give its approval or it will decide that a license is required. In such a case the parties need to submit a licence request containing significantly more information than the notification.

 

Four weeks from the date of filing the notification in accordance with Article 37(1) DCA.

If the ACM does not decide on the merger within the legal deadline (as extended by information requests), the merger is deemed to have been approved in accordance with Article 37(5) DCA.

Extension:

If the ACM requests additional information within five working days after receiving the notification, because the notification is incomplete, a new waiting period of four weeks will start once it has been completed in accordance with Article 38(1) DCA.

If the ACM decides that additional information is needed for the assessment of the intended merger, the ACM sends an information request to the parties. Such a request for additional information will automatically suspend the decision period in accordance with Article 38(2) DCA.

Upon request of the parties the waiting period can be suspended once (for instance when remedies are offered) in accordance with Article 38(3) DCA. 

Phase II: 

If the parties submit a request for a license, the ACM will start a phase II investigation. This is a more thorough investigation of the intended merger. The ACM will either give its approval by granting a license or it will prohibit the proposed merger.

Thirteen weeks from the submission of the license request in accordance with Article 44(1) DCA. 

If the ACM does not decide on the merger within the legal deadline, (as extended by information requests) the merger is deemed to have been approved in accordance with Article 37(5) DCA.

Extension:

If the ACM decides that additional information is needed for the assessment of the intended merger, the ACM can send an information request with a deadline to the parties in accordance with Article 4:5 General Administrative Law Act.  Such a request for additional information will automatically suspend the decision period in accordance with Article 4:15 General Administrative Law Act.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

The ACM assesses whether the merger will result in a significant impediment of effective competition in the Dutch market or a part of the Dutch market, in particular, as a result of the creation or strengthening of a dominant position on the market.

45) May any non-competition issues be considered?

No, the ACM does not take any non-competition issues into consideration when assessing a merger. 

However, the Minister of Economic Affairs and Climate Policy can in exceptional circumstances, on grounds of public interest, overrule a decision of the ACM not to clear a merger.

46) Special tests or criteria applicable for joint ventures

The assessment process for joint ventures is the same as for other mergers.

As indicated under topic 13, only full-function joint ventures are caught by the Dutch merger regime. Non-full functioning joint ventures and other forms of joint control are not subject to merger control, but may be assessed under the prohibition of restrictive agreements in Article 6 DCA.

47) Decisions and remedies/commitments available

Decisions 

In the notification phase (phase I), the ACM can take a decision to:

  1. clear the intended merger, 
  2. clear the intended merger subject to conditions, or 
  3. decide that the parties should apply for a license in accordance with Article 37 DCA. 

In the license phase (phase II), the ACM can take a decision to:

  1. clear the intended merger, 
  2. clear the intended merger subject to conditions, or 
  3. prohibit the intended merger in accordance with 41(2) DCA. 

In addition, if the ACM does not decide on the intended merger within the legal deadline – four weeks in phase I and thirteen weeks in phase II as extended by questions – the merger is deemed to have been cleared in accordance with Article 37(5) DCA and Article 44(1) DCA. However, this has never happened in practice.

Commitments

The ACM has published guidelines on remedies (2007 Remedies guidelines), which are largely consistent with the notice on remedies of the European Commission. The parties may propose remedies in both phase I and phase II. According to the 2007 Remedies guidelines, the parties may also request pre-notification contact to discuss potential remedies. 

It follows from the 2007 Remedies guidelines that remedies must be appropriate, effective, clear and detailed.

The remedies can be either structural or behavioural. However, the ACM has a preference for structural remedies over behavioural remedies. Contrary to behavioural remedies, structural remedies change the structure of the market in a sustainable manner and therefore in principle do not require further supervision after the implementation.

Publicity and access to the file

48) How and when will details about the merger be published?

After the ACM receives a notification or a license application, it will publish an announcement in the Government Gazette (Staatscourant) in accordance with Article 36 DCA and 42(3) DCA. The notification itself will not be published and the announcement only provides names of the parties concerned and their intention to conclude a transaction. Third parties are invited to submit their views on the proposed merger.

After the ACM has issued a decision, the ACM will also publish a non-confidential version of the decision in the Government Gazette, according to Article 37(7) DCA and 44(3) DCA. 

The DCA does not set a time limit in relation to the announcements and publications of the ACM in the Government Gazette. However, the announcements and publications usually appear in the Government Gazette within three to five days after the ACM has received the notification or issued a decision.

The ACM also publishes on its website the fact that it has received a notification or a license application and its merger control decisions. 

49) Access to the file for the merging parties and third parties

The merging parties:

The ACM aims to provide the merging parties with access to information received from third parties, to provide them with the opportunity to respond in accordance with the Dutch General Administrative Law Act. However, the ACM may redact confidential information on third parties.

Third parties:

Third parties can request information from the ACM relating to the merger on the basis of the Government Information (Public Access) Act (Wet Openbaarheid van Bestuur). Confidential information will not be provided. 

During phase II, no access to any documents in relation to the intended merger will be provided, since this could impede the investigation and it could harm the interests of the parties.

Judicial review

50) Who can appeal and what may be appealed?

The parties concerned and third parties whose interests are directly affected, can appeal any formal decision by the ACM before the District Court of Rotterdam. Further appeal against the judgment of the District Court of Rotterdam can be lodged with the Trade and Industry Appeals Tribunal. 


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