Netherlands

Merger control in the Netherlands is governed by Chapter 5 of the Dutch Competition Act (Mededingingswet, DCA). The Authority for Consumers and Markets (ACM) is the competent merger control authority.

The Dutch regime is mandatory and suspensory: concentrations meeting the statutory turnover thresholds must be notified before implementation.

Merger control is administered by the ACM, which decides in two statutory phases: Phase 1 (Article 37, DCA) and Phase 2 (Articles 41–46, DCA). The ACM is an independent administrative authority under the Establishment Act of the ACM. Ministerial powers do not extend to individual merger decisions, except that, following a refusal, the Minister of Economic Affairs and Climate Policy may grant a licence on grounds of overriding public interest (Articles 47–49, DCA). Decisions are subject to judicial review by the District Court of Rotterdam, with further appeal to the the Dutch Trade and Industry Appeals Tribunal (College van Beroep voor het bedrijfsleven, CBb).

Dutch merger control applies economy-wide. There is no sector-specific merger regime under the DCA. In certain sectors, the ACM may receive input from sector regulators (notably healthcare and media), but such input does not replace the ACM’s competition assessment. The Netherlands also operates a separate foreign direct investment (FDI) screening regime, which applies independently of merger control. In the healthcare sector, concentrations may additionally be subject to the healthcare-specific merger test administered by the Dutch Healthcare Authority (NZa), which focuses on continuity, accessibility and quality of care and operates alongside, but separate from, merger control under the DCA.

As an EU Member State, the Netherlands is subject to the EU Merger Regulation (EUMR). Concentrations with a Community dimension fall under the exclusive jurisdiction of the European Commission. Dutch merger control applies only outside EU jurisdiction. Cases may be transferred under the EUMR referral mechanisms. There are no sub-national merger regimes.

The ACM cooperates internationally (including within the European Competition Network and via EUMR referrals) and domestically with sector regulators where relevant. Such cooperation does not affect the ACM’s exclusive merger control competence.

A bill is pending to introduce a targeted call-in power for certain below-threshold concentrations (Wet inroepbevoegdheid ACM). Called-in transactions would be reviewed under a procedure largely mirroring the existing two-phase system. Separately, following Towercast (C-449/21, EU:C:2023:207), Article 24(2), DCA, which stipulated that a concentration could not amount to an abuse of a dominant position, was repealed. This makes it possible to assess below-threshold concentrations under the prohibition of abuse of a dominant position.

The trigger is a concentration, including the direct or indirect acquisition of control (zeggenschap) (Articles 26–27, DCA). Control is defined in line with the European Commission’s Consolidated Jurisdictional Notice and constitutes the ability, based on legal or factual circumstances, to exercise decisive influence. The test is case-specific and based on the facts and circumstances. Decisive influence exists where strategic/long-term policy decisions can be taken or blocked — actual exercise is not required. Control may be acquired through shares, assets or agreements, may be sole or joint, and includes negative sole control and joint control (mutual veto over strategic decisions). Minority stakes are caught where they confer decisive influence (notably through strategic veto rights). Ordinary minority-protection rights do not suffice and there is no minimum shareholding threshold. The concept is derived from Article 3(2) of the EUMR and EU jurisdictional guidance is used as interpretative guidance.

Only changes of control on a lasting basis are caught. Transactions that do not contribute to a lasting change of control fall outside the concentration concept (Articles 26–27, DCA). In line with the European Commission’s Jurisdictional Notice, transactions that are purely transitory in nature, such as interim or parking arrangements, or acquisitions followed by an immediate, pre-agreed split-up of the target, do not constitute a concentration where no lasting change of control occurs. Article 28 of the DCA excludes certain temporary holdings by banks/financial institutions/insurers acquired solely for resale, where voting rights are not used to determine market behaviour (except to prepare resale) and resale occurs within one year (extendable by the ACM).

A concentration may arise through merger, share acquisition, asset acquisition, or agreement/other means, provided there is a direct or indirect acquisition of control over an undertaking or part of an undertaking (Article 27, DCA). An acquisition of a business part is a concentration only if the turnover of that part can be separately identified; acquiring assets to which no turnover can be attributed is not a concentration. The transfer of employees alone is not a concentration.

The creation of a joint venture is a concentration only if it is full function, that is, performs on a lasting basis all functions of an autonomous economic entity (Article 27(2), DCA). Joint ventures that do not meet this test are treated as cooperation and assessed under the rules on restrictive agreements.

Under the DCA, multiple transactions are treated as one concentration where, in economic terms, they result in a single, durable change of control (Articles 26–27, DCA).

Sequential steps between the same parties. Successive steps are assessed jointly where they are interdependent and form one economic operation, including where later control was legally and factually foreseeable at the outset.

Interrelated transactions between different parties. Transactions involving different parties are viewed as one concentration when they are interdependent (linked by conditionality) and lead to the same ultimate acquirer(s) obtaining control.

As a general note, in the context of interrelated transactions, the ACM applies the same principles as the European Commission based on the EUMR and the Commission’s Jurisdictional Notice.

The ACM has jurisdiction over concentrations (Articles 26–27, DCA) that exceed the national turnover thresholds of Article 29 of the DCA and do not fall under exclusive EU jurisdiction. Jurisdiction arises where both thresholds are met:

• EUR 150 million worldwide turnover of all undertakings concerned; and
• EUR 30 million Dutch turnover for at least two undertakings concerned in the preceding calendar year.

Thresholds may be adjusted by Order in Council. No sector-specific lowered thresholds are currently in force. Concentrations with a Community dimension fall outside ACM jurisdiction unless referred under the EUMR.

Turnover is that of the undertakings concerned, determined by the transaction type:

• in a merger, the merging undertakings;
• in sole control, the acquirer and the target (or acquired part); and
• in joint control, each of the undertakings acquiring control, where joint control is acquired over an existing undertaking, also the pre-existing undertaking.

Turnover equals net turnover (Dutch accounting law) for the preceding calendar year, calculated on a group basis (Article 30(3), DCA) and excluding intra-group turnover. For acquisitions of parts, only the turnover of the transferred business is counted for the seller. Multiple acquisitions within two years between the same parties are treated as one concentration. For jointly controlled undertakings, third-party turnover is allocated pro rata to equity interests (Article 30(4), DCA). Financial institutions and insurers apply special rules under Article 31 of the DCA. Geographic allocation follows the EUMR and the Jurisdictional Notice.

There are no asset-based jurisdictional thresholds under the DCA.

The DCA sets no specific rules. Where turnover is stated in a non-euro currency, figures are converted using the average exchange rate of the relevant calendar year, in line with EUMR practice.

There are no market-share or share-of-supply thresholds. Jurisdiction depends exclusively on turnover (Article 29, DCA).

A local nexus is required only via Dutch turnover: notification is required if at least two undertakings concerned meet the Dutch turnover threshold. There is no effects test and no foreign-to-foreign exemption where thresholds are met.

There are no general exemptions or safe harbours once thresholds are met: no de minimis, no foreign-to-foreign carve-out, and no market-share safe harbour. Transactions fall outside notification only if they do not qualify as a concentration.

For notifiable concentrations implemented without notification or in breach of standstill, the ACM may act ex post: require notification, assess the transaction, impose fines/penalties, and order remedies or unwinding (Articles 34–37 and 74, DCA). This power applies only to notifiable concentrations.

The ACM has no general call-in power under Dutch merger control for transactions below the Article 29 of the DCA thresholds. Such transactions are not subject to notification or standstill obligations. However, below-threshold transactions may be subject to ex post enforcement under general Dutch and EU competition law, where the statutory conditions are met (notably Articles 6 or 24, DCA and Articles 101 or 102, Treaty on the Functioning of the European Union (TFEU)). Following the CJEU’s Towercast judgment, a below-threshold acquisition may, in exceptional cases, be assessed under abuse-of-dominance rules where it substantially strengthens a dominant position. This is not a merger control regime: there is no notification duty or standstill, intervention is exceptional, and the ACM must satisfy the full substantive test of the applicable competition law provision. A targeted call-in mechanism for certain below-threshold concentrations is proposed in pending legislation, but until entry into force the ACM must rely on ex post competition law enforcement. With regard to the ACM’s current practice: ex post intervention remains exceptional. The ACM has announced an ongoing investigation into Brink’s/Ziemann, a below-threshold transaction, without yet specifying the legal basis or outcome. A targeted call-in mechanism for certain below-threshold concentrations is proposed in pending legislation, but until entry into force the ACM relies solely on ex post competition law enforcement.

There is no general longstop date. For duly notified cases, failure to decide within Phase I/II deadlines results in deemed clearance. For unnotified notifiable concentrations, there is no fixed time limit for intervention, subject to administrative limitation periods for sanctions (generally five years, with interruption and an absolute 10-year cap). Below-threshold transactions have no merger-control longstop — only ex post competition-law enforcement applies. Final clearance is not time-limited, unless the implementation is materially different.

Dutch merger control provides no voluntary or precautionary notification regime. A concentration can be notified only if the jurisdictional turnover thresholds of Article 29 of the DCA are met. Where they are not, the ACM has no competence to accept or review a filing as a merger, no clearance decision can be obtained, and no standstill obligation applies. Parties may, however, seek informal, non-binding guidance from the ACM on jurisdictional or definitional questions; such contacts do not result in a formal decision and provide no immunity from later enforcement.

Where the Article 29 of the DCA thresholds are met, notification is mandatory. The notification obligation cannot be waived. The ACM may grant an exemption from the standstill obligation only in exceptional cases for compelling reasons (gewichtige redenen) (Article 40, DCA). Such an exemption does not remove the duty to notify and does not constitute clearance. Informal contacts cannot replace notification.

A statutory standstill obligation applies by operation of law (Article 34(1), DCA): a concentration may not be implemented before notification and clearance (or expiry of the statutory review period). Acts conferring control prior to clearance are prohibited; acts not bringing the concentration into effect, including limited voting rights exercised solely to preserve investment value, are permitted. The DCA provides no general power to replace standstill with discretionary hold-separate obligations. Breach may lead to sanctions and/or unwinding or adjustment.

Only via an Article 40 of the DCA exemption, granted exceptionally for weighty reasons (gewichtige redenen). Dutch law provides no explicit possibility to carve out the Netherlands in order to close other parts of the merger.

The obligation rests with the undertakings bringing about the concentration: the acquirer(s) in acquisitions and the merging parties jointly in mergers. The seller is not responsible unless it acquires joint control.

For notifiable concentrations in the Netherlands, the ACM charges separate filing fees for the notification phase and, where applicable, for the licence application. The filing fees constitute EUR 17,450 for the notification (Phase 1) and EUR 34,900 for the licence application (Phase II). Paying the fee is part of the notifying procedure, and therefore, the notification will not be accepted until the fee is paid. The amount of the fee is laid down in secondary legislation (the Regeling doorberekening kosten ACM, adopted under the Establishment Act of the ACM). Filing fees are subject to periodic revision by ministerial regulation. Up-to-date information on filing fees and the filing procedure can be found on the website of the ACM (www.acm.nl/nl/concurrentie-en-marktwerking/fusies-overnames-en-joint-ventures).

Notification and subsequent clearance must be obtained before implementation. Notification is possible without a signed agreement, provided that the parties have a sufficiently concrete intention to implement the transaction.

No fixed deadline applies. The only requirement is notification and clearance before implementation.

Filings must use the ACM’s Formulier melding concentratie (Article 35, DCA). Required information is set by ministerial regulation and includes transaction structure, control, turnover, markets, competitors/customers, and key transaction documents. Incomplete filings may be declared incomplete. The pro forma notification forms can be retrieved here: www.acm.nl/system/files/documents/meldings-en-vergunningsformulier-concentratie.pdf.

The notification must be in Dutch; annexes may be in English (translations may be requested). No notarisation or legalisation is required. Filings may be digital or written.

There is no separate simplified filing. The ACM may issue a short-form Phase 1 decision (verkorte afdoening), however, timelines and filing requirements remain unchanged (pursuant to the ACM Uitvoeringsregel verkorte afdoening). This approach is applied in principle where the concentration raises no competition concerns and no relevant objections from third parties have emerged, provided that the decision is not subject to conditions and does not depart from a view of the Dutch Healthcare Authority or an opinion of the Media Authority.

Not required, but common in complex or borderline cases. There is no statutory timetable — as a result, the duration can vary significantly depending on the complexity of the transaction and the issues raised.

Furthermore, the ACM requires an online intake form for all filings to be submitted one week before filing.

Phase 1: four weeks from a complete notification (Article 37, DCA). Suspension applies if information is requested and at the parties’ request. Phase 2: 13 weeks after licence application (Article 44, DCA), also subject to suspension. Failure to decide within deadlines results in deemed clearance. Short-form decisions in principle affect form only, not the statutory timelines.

Under Dutch merger control, the calculation of deadlines is governed by the Dutch General Time Limits Act (Algemene termijnenwet), which applies to the statutory time periods under the DCA. Statutory review periods are calculated in calendar weeks, not working days. If a deadline expires on a Saturday, Sunday or officially recognised public holiday, the deadline is automatically extended to the next working day. This rule applies to both Phase 1 and Phase 2 merger control deadlines. The starting date of a statutory period is the day following receipt of a complete notification, unless the law provides otherwise.

For a non-problematic Dutch merger, clearance is typically obtained in Phase 1, which has a statutory review period of four weeks starting from submission of a complete notification. If the ACM does not act within that period, clearance is deemed granted by operation of law. There are no statutory deadlines for preparation or prenotification discussions. However, under current ACM practice, parties must submit an online intake form one week before filing, which should be factored into transaction planning. Non-problematic cases are often cleared by way of a short-form (verkorte) decision, which affects only the form of the decision, not the statutory timetable. For long-stop date purposes, the only fixed element is the four-week Phase 1 review period, subject to suspension if the ACM issues stop-the-clock information requests, with all pre-filing steps remaining transaction-specific and non-statutory.

Public offer rules interact with Dutch merger control mainly through timing and standstill mechanics. Under the DCA, a public offer may be launched before merger clearance, but the bidder may not exercise control over the target until the standstill obligation has lapsed or clearance has been obtained. The DCA therefore allows an exception to the standstill obligation for public takeover bids, provided that voting rights are not exercised and the transaction is not otherwise implemented pending clearance. This enables the offer process to run in parallel with the merger review but does not shorten or suspend the statutory merger control timelines. As a result, public offer rules may affect transaction sequencing and strategy, but they do not affect the ACM’s review periods under the DCA.

After a concentration is notified, the ACM publishes a notice in the Dutch Government Gazette (Staatscourant) pursuant to Article 36 of the DCA, inviting interested third parties to submit comments within the statutory period. In addition, the ACM may request information from suppliers, customers or competitors in the course of its investigation, including in Phase 2 and in the context of remedies. Third parties have no formal procedural status in the merger review.

Under the DCA, the ACM has statutory powers to request information and documents from undertakings and third parties in merger proceedings. On the basis of Article 35(2) of the DCA, the Establishment Act of the ACM, and the Dutch General Administrative Law Act (DGALA), the ACM may require the disclosure of data, documents and internal materials that it considers reasonably necessary for its assessment. Formal information requests are legally binding, and failure to comply may lead to enforcement measures. Such formal requests suspend the statutory review period. In addition, the ACM may make informal information requests in practice, particularly during prenotification.

During merger control proceedings, the ACM is bound by statutory confidentiality obligations under the DCA, the Establishment Act of the ACM and the DGALA. Notifying parties may designate information as confidential. Any publication of decisions and any disclosure of information by the ACM in merger proceedings is subject to these statutory confidentiality obligations, and confidential business information is not disclosed in identifiable form.

Under Dutch merger control, the same substantive competition test applies in all phases, but with a different procedural function. In Phase 1 (notification phase), the ACM assesses whether there is reason to assume that the concentration could significantly impede effective competition on the Dutch market or a part thereof, in particular as a result of the creation or strengthening of a dominant position. If such concerns cannot be excluded, the ACM requires a licence. In Phase 2 (licence phase), the ACM applies the full substantive test, examining whether the concentration would significantly impede effective competition, again focusing in particular on dominance. Typical competition concerns include horizontal effects (loss of competition due to overlaps), unilateral or coordinated effects, and vertical effects (foreclosure risks). In principle, the ACM assesses concentrations solely on the basis of competition considerations. Accordingly, non-competition or public-interest factors are not taken into account by the ACM. Only in a separate and exceptional ministerial phase, following a negative ACM decision, may the Dutch Minister grant clearance on grounds of overriding public-interest considerations, notwithstanding the ACM’s competition assessment.

Under Dutch merger control, countervailing efficiencies or benefits may be taken into account only within the competition analysis itself. The DCA allows the ACM to consider efficiencies in so far as they are merger-specific, verifiable, and likely to benefit consumers, and only to the extent that they counteract potential anticompetitive effects of the concentration. Efficiencies do not constitute a separate legal test and cannot justify a concentration that would otherwise significantly impede effective competition.

During the merger review, the ACM may share its preliminary views informally, for example in meetings or calls, but there is no statutory obligation to do so. Where the ACM intends to refuse clearance or impose conditions, it issues a written statement of objections (Punten van Overweging) setting out its preliminary assessment. The parties are given the opportunity to submit written comments and may be heard at a hearing before a final decision is taken. Parties may obtain access to the file on the basis of the DGALA, in so far as applicable, subject to confidentiality restrictions.

Under the DCA, remedies are considered only within the formal review phases. In Phase 1 (notification phase), the ACM may clear a concentration subject to conditions if it is sufficiently clear that the identified competition concerns can be resolved by those conditions. If this is not the case, the ACM will decide that a licence is required, and the procedure moves to Phase 2. At the request of the parties, the Phase 1 review period may be extended once if this contributes to the proper handling of the case. In Phase 2 (licence phase), remedies are assessed as part of the licensing decision. After the ACM has set out its concerns, typically in the statement of objections (Punten van Overweging), the parties may submit formal remedy proposals, which are assessed before the ACM adopts its final decision. The DCA does not provide for a separate remedies procedure. Remedies are examined within the statutory decision-making framework of Phase 1 or Phase 2.

Under the DCA, the ACM may accept structural, behavioural or quasi-structural remedies. According to its remedies policy (Beleidsregel inzake remedies in concentratiezaken), the ACM assesses whether proposed remedies fully and effectively eliminate the identified competition concerns and are feasible and enforceable. The ACM prefers structural remedies, in particular the divestiture of a viable and independent business (or business unit), because a concentration brings about a lasting change in market structure and competition concerns should, therefore, be resolved in a permanent manner, without the need for ongoing supervision. Behavioural remedies may be accepted only in specific circumstances, and are not the ACM’s preferred option. If a concentration is implemented without clearance or in breach of conditions, the ACM may impose measures to restore the situation, which can include requiring the divestiture of assets or businesses to eliminate the competition concerns resulting from the completed merger.

Under the DCA, completion may or may not occur before remedies have been fully implemented, depending on the type of remedy and the conditions attached to the clearance decision. Where structural remedies are imposed, the ACM may require that a divestment is completed before the concentration is implemented or may allow completion subject to a binding obligation to divest within a specified period. For behavioural remedies, completion may occur once the binding commitments enter into force. Remedies are enforced through the conditions and obligations attached to the clearance decision. If remedies are not complied with, the ACM may impose periodic penalty payments or fines and may take measures to restore the competitive situation, including requiring divestiture. Enforcement powers are exercised under the DCA and the Establishment Act of the ACM.

The ACM’s decision is formally notified to the notifying parties (i.e. the undertakings that submitted the notification). In addition, the ACM publishes a public notice of the decision, typically in non-confidential form, for example via the Government Gazette (Staatscourant) and on the ACM’s website. Confidential business information is removed prior to publication.

Clearance decisions take immediate effect. Once the ACM has issued a decision that no licence is required or has granted a licence, the standstill obligation ceases to apply immediately, and there is no additional statutory waiting period before completion may take place.

A merger clearance does not automatically cover ancillary restraints. Restrictions that are directly related and necessary to the implementation of the concentration may fall within Article 10 of the DCA. The ACM may, at the request of the notifying parties, assess such restrictions as part of the merger review, but the assessment of ancillary restraints remains primarily the responsibility of the parties.

ACM clearance decisions can be appealed. Appeals are governed by the DGALA in conjunction with the DCA. An appeal may be lodged by an interested party with the District Court of Rotterdam. The time limit is six weeks from the date on which the decision is notified or published. Further appeal lies with the CBb.

Failure to notify a notifiable concentration or implementation prior to clearance (gun-jumping) infringes the DCA. The ACM may impose administrative fines and/or periodic penalty payments on the undertakings acquiring control (Article 74, DCA). These sanctions are administrative, not criminal, and apply irrespective of the transaction’s competitive effects. Where a concentration is implemented without notification or in breach of the standstill obligation, the underlying legal acts may be null and void under Dutch civil law (Article 3:40(2), Dutch Civil Code), as they are contrary to mandatory competition law rules. This approach differs from the EUMR, under which the validity of the transaction is, in principle, not affected merely by a failure to notify or observe the standstill obligation, but depends on the final substantive decision. In addition, the ACM may order the concentration to be undone or adjusted if clearance is refused or granted subject to remedies. The regime applies to both domestic and foreign undertakings meeting Dutch jurisdictional thresholds.

Early implementation of a notifiable merger (gun-jumping) infringes the DCA. The ACM may impose administrative fines and/or periodic penalty payments on the undertakings acquiring control (Article 74, DCA). Pre-closing integration is permitted only to the extent that it does not result in the acquisition or exercise of control before clearance. Acts conferring decisive influence may already constitute a breach of the standstill obligation.

Providing incorrect, misleading or incomplete information in a merger notification or licence application infringes the DCA. The ACM may impose administrative fines on the undertakings concerned (Article 73, DCA).