Dutch merger control is similar to European merger control, certainly as regards the substantive rules. Thus, the Dutch concept of a concentration is similar to the definition of a concentration as laid down in the EU Merger Regulation (EUMR). It includes the acquisition of control and the possibility to influence strategic decisions of the target. Furthermore, the concept of undertakings concerned and the methodology of allocating turnover to the undertakings concerned are identical. Moreover, the European Commission’s decision practice and the Commission’s Consolidated Jurisdictional Notice are closely followed by the Dutch Authority for Consumers and Markets2 (ACM) when it comes to, for example, the full functionality of a joint venture3 or the geographical allocation of turnover.4
Mergers meeting the jurisdictional thresholds as laid down in the Dutch Competition Act (DCA) must be notified to the ACM. In general, a concentration must be notified to the ACM if the combined worldwide turnover of all undertakings concerned is more than €150 million in the calendar year preceding the concentration, and at least two of the undertakings concerned each achieved at least a €30 million turnover in the Netherlands. Various sector-specific thresholds are discussed in Section III, infra.
Concentrations meeting the thresholds must be notified prior to completion and may not be implemented during the review period. Failure to notify may result in large fines.
II YEAR IN REVIEW
The ACM received 89 notifications and reached 88 decisions in 2014 – considerably more than in 2014 (75 notifications and 72 decisions).5 The majority of notifications resulted in one-page short decisions. Only six Phase I decisions were substantiated (with reasons, down from eight in 2014 and 15 in 2013). The majority of these involved the healthcare sector, with two hospital mergers6 and two transactions involving homecare institutions.7 Of the two remaining cases, one concerned the distribution and retail of pharmaceutical products8 and the other the gambling industry.9
The continuing policy of the ACM to issue only a limited number of reasoned decisions results in a lack of guidance on market definitions, jurisdictional issues, economic analyses and theories of harm. This can render the notification process unpredictable. The ACM only partially makes up for the ‘guidance deficit’ by publishing informal guidance letters addressed to parties seeking guidance on the interpretation of the merger rules. It published only two such letters in 2014, and these concerned strictly procedural questions regarding the existence of a duty to notify.
The ACM concluded that a Phase II investigation was necessary in three cases,10 of which one was subsequently cleared without remedies in Phase II.11 At the time of writing, the two others were awaiting a final decision.12 In addition, the ACM reached a decision in two Phase II investigations that had already started in 2014. Of these, one concentration was allowed with remedies13 and one was prohibited, resulting in the first final prohibition of a hospital merger.14
An exemption from the mandatory waiting period has been granted four times. Three of these concerned the retail of consumer goods (clothing, personal care and electronics),15 and one industrial services, perfectly reflecting the state of the economy.16
The ACM did not impose any fines for a failure to notify a concentration in 2015.
ii Infringements of formal obligations and legal proceedings
The District Court of Rotterdam treated an appeal by the Dutch Patient Consumer Federation (NPCF) against the licence that the ACM had granted for the merger between two hospitals in 2013.17 The NPCF claimed that, as a patients’ organisation, it qualified as a consumer organisation under Article 93 DCA.18 This Article provides that consumer organisations are by definition parties concerned, and hence have standing to appeal decisions by the ACM. The District Court held that the NPCF, according to its own articles of association, does not directly represent patient interests, as it is a federation of patient organisations. In addition, the Court remarked that the actual patients’ organisation active in the area of the hospitals concerned had supported the merger. On this basis, the Court declared the NPCF inadmissible.19
The ACM also won in the Reggefiber case. In 2008, the ACM allowed the creation of a joint venture between KPN and Reggefiber for the development of optical fibre networks, in a Phase I decision with remedies. Cable company Ziggo appealed, citing recent developments that showed that the assessment of the market developments by the ACM in 2008 were incorrect. The Regulatory Industrial Organisation Appeals Court (CBb) held that the review must take place ex tunc and not ex nunc. As Ziggo had not shown that the ACM had misinterpreted any contemporary reports regarding the market, the appeal was rejected. Incidentally, the CBb held that the standard of review is identical for Phase I and Phase II decisions.20
iii Phase I decisions
The ACM allowed two hospital mergers without remedies. The proposed acquisition of the Ommelander hospital by the academic hospital Universitair Medisch Centrum Groningen was positively received by a patients’ group and healthcare insurers, and would allow for new development.21 The acquisition of the LangeLand hospital by the Reinier Haga Groep met more resistance from healthcare insurers, but the ACM considered that the large number of hospitals in the area between the Hague and Rotterdam would guarantee sufficient leverage for the insurers to negotiate.22
A merger between two institutions for mental healthcare was allowed as all purchasers – local communities – indicated that a sufficient number of competitors would remain active.23
Still in the market for mental healthcare, the ACM sent the proposed acquisition of Antes by Parnassia to Phase II for an in-depth investigation of several market segments where the parties would have shares of 70 per cent to 100 per cent.24 Healthcare insurers had reacted positively to the proposed acquisition based on prior commitments by Parnassia regarding price, quality and freedom of choice for patients. The ACM considered that such commitments are not part of its assessment framework and found that, without the commitments, the healthcare insurers would lack purchasing power.
The acquisition of Mediq by Brocacef was referred from the European Commission to the ACM. The parties are both pharmacy franchises and wholesalers of pharmaceutical products. The ACM found that the concentration would reduce the number of wholesalers able to supply hospitals from three to two, and would lead to market shares of 30 per cent to 40 per cent on the national market for pharmacies, with numerous local monopolies. The case was sent to Phase II.25
iv Phase II cases
The proposed acquisition of Mecom, a publisher of mainly regional newspapers, by the Persgroep, a publisher of mainly national newspapers, was sent to Phase II in 2014. The in-depth investigation of the ACM revealed no problems on the market for advertisers, as advertising space in regional and national newspapers was found to be complimentary, with alternatives in the form of free door-to-door papers. The combined entity would become dominant on the market for the distribution of national newspapers. Hence, the concentration was only allowed subject to a remedy requiring the parties to grant relevant third parties (reciprocal) access to their distribution network until 2025.26
The merger of the State Lottery (Staatsloterij) and the Lotto was sent to Phase II as it would lead to a market share of around 52 per cent. However, in Phase II the ACM found that competition between lottery games and lotto games is very much mitigated by the strict and detailed Dutch legal framework that prescribes the modalities of the games. In addition, the ACM found that the expected liberalisation of online gambling would lead to more competitive pressure on the market. A licence was granted without remedies.27
The Phase II investigation of the proposed hospital merger between Albert Schweitzer Ziekenhuis and Rivas confirmed to the ACM that the parties were each other’s closest competitors. In addition, most healthcare insurers considered that they would not be able to discipline the merged entity.28 The parties proposed a pricing ceiling at Albert Schweitzer for two years, and the continued offering of all treatments at Rivas for five years. The ACM rejected this proposal as it was looking for structural, not behavioural remedies. Consequently, the merger was prohibited.29 This is the first hospital merger that the ACM prohibited and it comes, coincidentally, after much political pressure on the ACM to be stricter regarding hospital mergers.
v Exemptions from the standstill period
The ACM granted an exemption of the mandatory standstill period before closing of a concentration is permitted on four occasions. They all involved bankruptcy on the side of the target.
Imtech T&I, a division of the Imtech Group, was not bankrupt itself, but the holding companies at the group level were. As this denied Imtech T&I access to financing and suppliers, an exemption was granted.30
In two cases concerning chains of consumer retail shops, the ACM found that the urgent condition was met because of the looming termination by the landlords of the rental agreements for the shops.31 At the bankruptcy of the personal care franchise DA, the concern that franchisees would leave for other suppliers led to an exemption of the waiting period.32
The ACM is able to render an exemption from the standstill period much faster than before: in the case of Imtech T&I, an exemption was even granted within a day.
vi Impact assessment reports
The ACM published two report regarding the effects of mergers on the market price level.
The first report was a joint effort with the European Commission, and concerned the telecoms market. It found that the relative pricing level in the Netherlands increased slightly following the acquisition of Orange by T-Mobile in 2007.33
The second report looks at the effects of three supermarket mergers that took place between 2009 and 2012. It found that prices did not increase, but that the product range increased slightly less in local markets where the number of competing chains decreased due to the transactions.34
III THE MERGER CONTROL REGIME
i Merger control thresholds
Article 29 DCA provides that a concentration must be notified if:
- a the combined turnover of all undertakings concerned exceeds €150 million in the calendar year preceding the concentration; and
- b of this turnover, at least two concerned undertakings each achieved at least €30 million in the Netherlands.
Alternative jurisdictional thresholds exist for the following undertakings.35
All concentrations involving at least one healthcare undertaking must be notified to the Dutch Healthcare Authority (NZa). For the purpose of the healthcare specific test carried out by the NZa, a healthcare undertaking is defined as an undertaking employing or contracting more than 50 healthcare providers (persons).36 The NZa evaluates, inter alia, the accessibility and quality of services and their integration plans. If the NZa advises positively, the transaction must be notified to the ACM if it meets the thresholds explained below.
For the purpose of the control by the ACM, a healthcare undertaking is an undertaking that achieves at least €5.5 million turnover through healthcare services. A concentration between two or more healthcare undertakings must be notified to the ACM if:
- a the combined turnover of all undertakings concerned exceeds €55 million in the calendar year preceding the concentration; and
- b of this turnover, at least two of the undertakings concerned each achieved at least €10 million in the Netherlands.37
Credit and financial institutions
For credit and financial institutions within the meaning of the Act on Financial Supervision, Article 31(1) of the DCA states that instead of turnover, income items must be used (analogous to those defined in Article 5(3)(a) of the EUMR).
Any type of pension fund will be regarded as an undertaking for competition law purposes. New thresholds apply from 1 July 2016: concentrations involving pension funds are subject to prior notification if the joint worldwide premiums written by the parties concerned in the preceding calendar year amounted to €500 million and at least two parties achieved €100 million premiums written by Dutch citizens.38
ii Investigation phases
The Dutch procedure consists of two phases. In Phase I, the ACM will investigate upon notification whether there are reasons to assume that the concentration may impede effective competition in certain markets (notification phase). If there are no such reasons, the authority will clear the concentration, after which the concentration may be completed. Once the decision on the notification is issued, a filing fee of €17,450 is imposed, regardless of the outcome of the decision.
If the ACM has reason to assume that competition may be impeded, it decides that the concentration requires a licence, which will be granted only after a further investigation in Phase II (licence phase).
In contrast with the European procedure, in the Netherlands, Phase II only starts if and when the parties involved request a licence. Such request requires a new notification in which more detailed information is provided to the authority about the parties and the relevant markets. Upon this request, the authority will conduct an additional investigation and either clear or prohibit the relevant concentration. Before prohibiting a concentration, the authority will provide the parties (and sometimes third parties) with an overview of the relevant competition concerns (points of consideration) and will provide the parties (and sometimes third parties) with the opportunity to give their reactions on these points. Once the decision on the licence request is issued, a filing fee of €34,900 is payable, regardless of the outcome of the decision.
Both the notification for Phase I and the request for a licence must be submitted in Dutch. Annexes, such as letters of intent or share purchase agreements, or annual reports, may be submitted in English.
Clearance by the Minister of Economic Affairs, Agriculture and Innovation
If a concentration is prohibited, there is a (theoretical) possibility – which has never been undertaken to date – of requesting the Minister of Economic Affairs, Agriculture and Innovation to grant a licence due to serious reasons of general interest.
iii Duration procedure and waiting period (standstill obligation)
Phase I is a 28-day review period, whereas Phase II has a maximum duration of 13 weeks. However, these periods may be suspended if the authority asks formal questions requiring additional information on the concentration. Due to this possibility of suspension, the review period can be very lengthy. As an extreme example, the 28-day period (Phase I) was suspended for 261 days in the case of Cooperatie Vlietland/Vlietland Ziekenhuis.39 There are no requirements for pre-notification.
Exemption waiting period
As previously indicated, the concentration may not be completed during the review period. Some exceptions apply, which are similar to those under the EUMR. In the event of a public bid, the prohibition does not apply, provided that the bid is immediately notified to the ACM and the acquirer does not exercise the voting rights attached to the relevant share capital (the latter condition may be waived).
The ACM can also grant an exemption from the standstill obligation if quick clearance by the authority is not possible and suspension of completion of the concentration would seriously jeopardise the concentration. Such exemption can be granted within several working days. Once the exemption is granted, the concentration may be completed before the authority clears it.
In both cases, the concentration must be unwound if it is subsequently prohibited by the authority.
iv Other procedural aspects
The notification of a transaction is always published in the Government Gazette. In this communication, third parties are invited to comment on the contemplated concentration. Although third parties are requested to respond within seven days, information provided later may also be used in the procedure. The authority also actively gathers information by sending out questionnaires or by interviewing third parties.
Information received from third parties will generally be communicated to the parties concerned to provide them with the opportunity to respond. Generally, the authority will reveal the third party’s identity.40
Under the Dutch merger control rules, parties can propose remedies in both the notification phase and the licence phase. The conditions and type of remedies are in principle similar in both instances and are laid down in guidelines.41 The general preconditions are that the parties to the concentration must take the initiative and the remedies proposed must be suitable and effective for eliminating the relevant competition concerns. The authority generally prefers structural remedies, but behavioural or quasi-structural remedies (not structural but nevertheless on a permanent basis, such as an exclusive licence agreement) are also possible. The authority does not have a specific form,42 but does require, inter alia:
- a the proposal to be in writing;
- b a detailed description of the nature and size of the remedy;
- c a note on how all indicated competition concerns will be eliminated;
- d if applicable, the steps required to divest a part of the undertaking and the timeline for such;
- e a non-confidential version of the proposal; and
- f a timely filing of the proposal.
Nevertheless, there are some differences between the procedures in the two phases. First, in the notification phase the remedy proposal should be handed in a week prior to the deadline of the ACM decision, whereas this is three weeks in the licence phase. In addition, whereas a concentration cleared under conditions in the notification phase may not be completed until the remedy is effectuated – effectively creating a ‘fix it first’ obligation – this limitation does not apply to remedies accepted in the licence phase. In both cases, however, effectuation of the remedies must be within the time frame stipulated in the proposal. If the parties fail to meet this deadline, the concentration will require a licence (remedies in the notification phase) or the concentration will be deemed to have been completed without a licence (remedies in the licence phase). In general, any failure to comply with remedies once the concentration has been completed is punishable by heavy fines.43
Fines for late notification
As previously indicated, failure to notify a concentration (in a timely manner) will usually lead to a fine upon discovery by the authority. Fines for late notification may run up to 10 per cent of the worldwide turnover in the year preceding the year of the fine, but this ceiling can be doubled in a case of recidivism. On the basis of Articles 2.5 and 2.6 of the 2014 ACM Fining Policy Rule,44 the ACM generally calculates its fines on the basis of 1.25 per cent or 3.75 per cent of the total Dutch turnover in the preceding financial year for the buyer; however, the ACM has substantial leeway to increase the resulting amount of the fine if it deems it to be too low.
v Appeals and judicial review
Merger control decisions
Each phase ends with a decision, which can be appealed before the District Court of Rotterdam by any party directly affected by the decision, including the parties involved in the concentration, and usually also competitors, customers and possibly suppliers. Further appeal against a judgment of the Rotterdam District Court can be lodged with the Regulatory Industrial Organisation Appeals Court (CBb).
Third parties directly affected by the decision do not have access to the authority’s file, but they can request information from the authority on the basis of the Government Information (Public Access) Act when the merger control procedure has been completed. Information that is generally not provided to third parties under this Act includes confidential business information and internal memos of the authority.
Before imposing a fine, the ACM draws up a statement of objections on which parties may comment (in writing or orally). After this, the ACM will take a decision against which a notice of objection can be filed with the ACM. An appeal can be lodged against the ACM’s decision (on administrative appeal) to the District Court of Rotterdam. An appeal can be lodged with the CBb against the District Court’s decision.
IV OTHER STRATEGIC CONSIDERATIONS
As previously indicated, the ACM is stringent in its interpretation of its jurisdiction, gun-jumping issues, late notifications and failure to comply with remedies, and has a track record of imposing heavy fines in cases of non-compliance. If it is unclear whether a concentration must be notified, the parties can seek informal guidance from the authority. The authority is required to react to such queries, and does so within two weeks (often within days).
V OUTLOOK and CONCLUSIONS
The merger of the NMa with the telecom regulator OPTA and the Consumer Authority was effectuated per 1 April 2013. Some changes to the powers of the authority, such as the increase in merger thresholds and the possibility to exchange information with other government agencies, entered into force on 1 August 2014.45
Since the merger, the ACM is clearly placing more priority on consumer protection than on the competitive structure of the market. This is, so far, of small consequence in the field of merger control, where the ACM generally remains quite realistic in its analyses.
The main challenge for private parties remains how to deal with the tendency of the ACM to refuse to conduct more substantial investigations during Phase I, obliging parties to offer radical remedies to prevent a time-consuming Phase II investigation.
Another major challenge is the healthcare-specific merger test of the NZa.46 The Minister has proposed transferring this test to the ACM as of 1 January 2017,47 which may bring some procedural efficiency. However, the transfer will not affect the essence of the test and hence will continue to pose a heavy administrative burden on the parties involved.
The trend for third parties to challenge mergers that are approved by the ACM continues, but this concerns only a few very sensitive cases.48
The fining ceilings of the ACM rose considerably from 1 July 2016. The absolute maximum would be raised from €450,000 to €900,000. The relative maximum amount for cartel infringements would become 10 per cent of the turnover of the infringing group, multiplied by the number of years that the cartel lasted up to a maximum of four years. All maximum fines would double in cases of recidivism. Notably, the last change would affect fines for late filing.49
1 Gerrit Oosterhuis is a counsel and Weyer VerLoren van Themaat is a partner at Houthoff Buruma.
2 The ACM is the result of the merger between the Dutch Competition Authority (NMa), the Dutch Consumer Authority and the telecoms authority OPTA. The merger was effectuated as per 1 April 2013. Some of the case names – prior to 1 April 2013 – still refer to the NMa.
3 Decision NMa 7 September 2010 (Transdev/Veolia), Case 6957.
4 Decision NMa 3 May 2010 (Amlin/Dutch State) Case 6843. For a discussion of the EUMR, the Consolidated Jurisdictional Notice and the decision practice of the European Commission, please refer to the European Union chapter.
5 Statistics from the Online Annual Report 2015 of the ACM (Dutch version), see https://jaarverslag.acm.nl/jaarverslag-2015/concentraties (www.acm.nl/en/download/publication/?id=14113).
6 Decision ACM 2 April 2015 (Medisch Centrum Groningen – Ommelander Ziekenhuis Groep) Case 15.0027.22 and decision ACM 19 March 2015 (Stichting Reinier Haga Groep – Stichting ‘t Lange Land Ziekenhuis) Case 14.1059.22.
7 Decision ACM 8 December 2015 (Stichting de Jutters – Parnassia Groep) Case 15.1009.22 and decision ACM 6 November 2015 (Parnassia Groep BV – Stichting Antes) Case 15.0992.22.
8 Decision ACM 23 July 2015 (Brocacef – Mediq) Case 15.0484.22.
9 Phase I decision ACM 18 August 2015 (SENS-SNS) Case 15.0701.22.
10 The same number as in 2014, up from two in 2013.
11 Phase II decision ACM 7 December 2015 (SENS-SNS), Case 15.0783.24.
12 Decision ACM 6 November 2015 (Parnassia Groep BV – Stichting Antes) Case 15.0992.22 and decision ACM 23 July 2015 (Brocacef – Mediq) Case 15.0484.22.
13 Decision ACM 11 February 2015 (De Persgroep-Mecom Group) Case 14.1067.24. The decision in Phase II dated from 19 September 2014.
14 Decision ACM 15 July 2015 (Albert Schweitzer Ziekenhuis-Stichting Rivas Zorggroep) Case 14.0982.24.
15 Decision ACM 9 May 2015 (FIPH-Etam), Case 15.0493.23, decision ACM 1 April 2015, (Holland Pharma Exploitatie BV - DA Holding BV) Case 15.1276.22), decision ACM 19 October 2015 (Relevant Holdings - winkels iCentre, Dixons en MyCom), Case 15.1025.23.
16 Decision ACM 17 August 2015 (RCPT Beheer BV-Imtech T&I), Case 15.0845.23.
17 Decision ACM of 30 September 2013 (Stichting Lievensberg Ziekenhuis - Stichting St. Franciscus Ziekenhuis), Case 13.0438.24.
18 Article 93 with Article 1 DCA. Consumer organisations are legal entities that, according to their founding documents or articles of association, represent the collective interest of consumers.
19 Rotterdam District Court 9 April 2015 (NPCF/ACM), ECLI:NL:RBROT:2015:2307.
20 Decision CBb 6 October 2015 (Ziggo/ACM), ECLI:NL:CBB:2015:313.
21 Decision ACM 2 April 2015 (Medisch Centrum Groningen – Ommelander Ziekenhuis Groep) Case 15.0027.22.
22 Decision ACM 19 March 2015 (Stichting Reinier Haga Groep – Stichting ‘t Lange Land Ziekenhuis) Case 14.1059.22.
23 Decision ACM 8 December 2015 (Stichting de Jutters – Parnassia Groep) Case 15.1009.22.
24 Decision ACM 6 November 2015 (Parnassia Groep BV – Stichting Antes) Case 15.0992.22. A decision in Phase II is expected in 2016.
25 Decision ACM 23 July 2015 (Brocacef – Mediq) Case 15.0484.22 A decision in Phase II is expected in 2016.
26 Phase I decision ACM 19 September 2014 (De Persgroep Publishing NV–Mecom Group Plc), Case 14.0810.22. Phase II decision ACM of 25 February 2015 (De Persgroep Publishing NV–Mecom Group Plc), Case 14.1067.24.
27 Phase I decision ACM 18 August 2015 (SENS-SNS) Case 15.0701.22. Phase II decision ACM 7 December 2015 (SENS-SNS), Case 15.0783.24.
28 In the guidance document regarding the assessment of healthcare mergers, the ACM sets out that it will give much weight to the opinion of patient organisations and healthcare insurers. See ‘Beoordeling fusies en samenwerkingen ziekenhuiszorg’ at www.acm.nl/nl/download/publicatie/?id=12037 for the Dutch-language version.
29 Phase I decision ACM 18 March 2014 (Stichting Albert Schweitzer Ziekenhuis/Stichting Rivas Zorggroep), Case 13.1464.22. Phase II decision ACM 15 July 2015 (Albert Schweitzer Ziekenhuis-Stichting Rivas Zorggroep) Case 14.0982.24.
30 Decision ACM 17 August 2015 (RCPT Beheer BV-Imtech T&I), Case 15.0845.23.
31 Decision ACM 9 May 2015 (FIPH-Etam), Case 15.0493.23 and decision ACM 19 October 2015 (Relevant Holdings – winkels iCentre, Dixons en MyCom), Case 15.1025.23.
32 Decision ACM 1 April 2015, (Holland Pharma Exploitatie BV – DA Holding BV) Case 15.1276.22.
33 See here: https://www.acm.nl/nl/publicaties/publicatie/15073/Geringe-prijsdaling-belkosten-na-Nederlandse-telecomfusie-in-2007/ for the press release of the ACM and https://www.acm.nl/nl/download/publicatie/?id=15067 for the report.
34 See https://www.acm.nl/nl/publicaties/publicatie/15069/Supermarkten-niet-duurder-door-fusies/ for the press release of the ACM and https://www.acm.nl/nl/download/publicatie/?id=15070 for the report.
35 Since the Act for the streamlining of market surveillance by the ACM of 24 June 2014 entered into force on 1 August 2014, concentrations between insurance companies are subject to the regular thresholds. Previously, a complicated lower threshold applied.
36 The relevant amendment to the Health Care (Market Regulation) Act was voted on 26 November 2013 and is applicable as of 1 January 2014.
37 These thresholds will continue to apply until at least 1 January 2018. Decision of 19 October 2012, amending the decision of 6 December 2007 regarding the temporary lowering of the thresholds for healthcare mergers, Government Gazette 2012, 515.
38 Law of 23 December 2015 changed a number of laws in the Ministry of Economic Affairs domain, including raising the maximum fines applicable to the ACM (proposal 34,190).
39 Decision NMa 18 February 2010 (Coöperatie Vlietland/Vlietland Ziekenhuis), Case No. 6669.
40 The ACM has published ‘rules of the game for merger control procedures’ providing detailed information on its approach in merger control cases, available at www.acm.nl/nl/download/publicatie/?id=11348 (in Dutch).
41 Remedies guidelines 2007. This section is based on these guidelines.
42 In its guidelines, the authority does refer to model texts from the European Commission.
43 For example, the €2 million fine imposed on Wegener; for more information, see the Netherlands chapter in the 2013 edition of this publication.
44 Policy rule of the Minister of Economic Affairs of 4 July 2014, No. WJZ/14112617, on the imposition of administrative fines by the Netherlands Authority for Consumers and Markets (www.acm.nl/en/download/attachment/?id=12098).
45 See footnote 33.
46 Article 49 of the Health Care (Market Regulation) Act of 1 October 2006.
47 Proposal of Law of 8 April 2016, 34445.
48 See the NPCF and Reggefiber cases discussed in Section II.ii infra.
49 Law of 23 December 2015 changing a number of laws in the working space of the Ministry of Economic Affairs, concerning a raise of the maximum fines applicable to the ACM (proposal 34190). This law was adopted despite a negative advice of the Council of State and a lack of enthusiasm of the ACM itself, in what could be characterised as a slightly populist measure.