I INTRODUCTION

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.

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

i Workload

The ACM received 134 notifications and reached 127 decisions in Phase I in 2019, which is significantly more than the workload in 2018 (107 notifications and 93 Phase I decisions).5 The majority of notifications resulted in one-page short decisions. Only nine Phase I decisions were substantiated (with reasons, around the same as the seven in 2018 and down from 14 in 2017). In addition, the ACM received seven requests for decisions in Phase II and issued three decisions in Phase II,6 which shows an increase in workload and increased complexity in comparison to 2018.

Five of the substantiated decisions in Phase I concerned acquisitions within the healthcare (home care, elderly care, rehabilitation care and general hospital care)7 and pharmacy8 sectors. Two decisions concerned the food sector, with one acquisition in the field of meat and meat substitutes (including both production and packaging)9 and one involving the production of private label biscuits, cakes and snacks.10 Of the two remaining (substantiated) decisions in Phase I, one concerned the clearance (with remedies) of transaction in the childcare and after-school care sector11 and one acquisition in the insurance sector.12

The Phase II decisions concerned acquisitions in the field of educational technology, laundry services (both permitted)13 and the Dutch postal services (prohibited).14 Remarkable with respect to the latter is that for the first time, the Dutch Minister of Economic Affairs overruled the ACM by granting permission for the acquisition15 despite the negative ACM decision.

Similar to 2018, an exemption from the mandatory waiting period was granted three times in 2019.16

The ACM did not impose any fines for failure to notify a concentration in 2019.

ii Infringements of formal obligations and legal proceedings

The only judgment regarding merger control in 2019 concerned the ruling of the Trade and Industry Appeals Tribunal (CBb) of 8 October 2019, in which the CBb ruled in favour of the ACM.17

This case can be traced back to 2016, when the ACM approved, subject to remedies, the acquisition of Mediq pharmacies by its competitor Brocacef. Brocacef is also active as a pharmaceutical wholesaler.18 The decision of the ACM was appealed but confirmed by the Rotterdam District Court.19 This judgment was in turn appealed to the CBb, where the debate focused on the remedies. Brocacef was obliged to sell 89 local pharmacies and was prohibited to enter into a new wholesale relationship with the divested business for two years. The CBb confirmed that the divestment sufficiently limited the horizontal overlap between the parties. The cooling-off period was held to be sufficiently long to ensure that the divested pharmacies created lasting relationships with new wholesalers, which solved the vertical and horizontal issues. The ACM had refused to impose a general prohibition on Brocacef to acquire additional pharmacies after the implementation of the remedies. The CBb agreed that such general prohibition was not required, as any new acquisitions would have no causal link with the notified Mediq transaction and hence could not be addressed by the ACM in this case. Finally, the ACM had required Brocacef to sell some wholesale activities. In the appeal, the claimants submitted that the approved buyer of those activities was not suitable. The CBb held that the ACM had investigated the qualities of the buyer to the requisite degree: the ACM could not have foreseen that the buyer would later run into financial difficulties.

The appellants may have wanted the ACM to create an even more competitive environment through the remedies, but the decision of the CBb shows that the ACM cannot shape the market at will but can only address problems that are actually created by the relevant concentration.

iii Phase I decisions

Insurance company NN Group was allowed to acquire the indemnity and income protection insurance activities of its rival Vivat.20 Market shares were, depending on the segmentation, between 20 per cent and 50 per cent, but the ACM found sufficient levels of competition due to a lack of capacity restraints and ease of switching for consumers. The ACM investigated the potential impact of bundled offering of insurance products and mortgages, but found that price comparison websites and intermediaries were a guarantee against non-competitive offerings.

In its clearance of an acquisition by Banketgroep (part of Biscuit International),21 the ACM defined a new market for biscuits, cakes, cookies and between-meal snacks, which comprises several markets that were previously defined separately. The ACM found not just demand-side substitution – as all products are impulse acquisitions – but also supply-side substitution as most products are produced in the same factories or even on the same production lines.

In the Kidsfoundation/Partou case,22 the ACM had to define, for the first time, the markets for childcare (for children of up to four years old) and after-school childcare (for children aged from four to 13 years old). For both product markets, the ACM included not only professional providers but also registered host families on the supply side, as the latter have to comply with the same regulations as establishments of formal (after-school) childcare providers. The geographical market was defined as an area within 10 minutes' travel time by bicycle from a childcare establishment. For after-school childcare, the ACM took into account an area of eight minutes' travel time by foot and 10 minutes' travel time by bicycle. Here, the starting point is the school, as after-school childcare close to the child's school might be preferred. Vicinity and capacity are deemed important parameters, and on this basis the parties were obliged to divest a number of establishments in Amsterdam.

Hilton Foods/Dalco Food23 concerned the markets for the production of processed beef and pork products and the markets for the production of meat substitutes and meat alternatives as well as the markets for packaging such products. The ACM saw no impediment to competition as there was little overlap.

Regarding the proposed merger between Stichting Zorggroep Apeldoorn and Stichting Trimenzo,24 the ACM identified concerns in the market for nursing home care in the municipality of Voorst and required a more thorough investigation of the market in Phase II. The parties subsequently abandoned their merger.

The OLVG hospital received clearance to obtain certain activities from the bankrupt Slotervaartziekenhuis hospital,25 both serving Amsterdam. OLVG would obtain a strong position, but the ACM held that there was no causal link with the acquisition, as most of Slotervaartziekenhuis's patients would have moved to OLVG even without the acquisition due to its geographical proximity. The acquisition had closed prior to the clearance decision as a result of a waiver in the standstill obligation due to Slotervaartziekenhuis's bankruptcy.

In another hospital bankruptcy case, St Jansdal Hospital received clearance to acquire the bankrupt IJsselmeerziekenhuizen hospital in the town of Lelystad.26 This is the first case in which the ACM applied its new best practices regarding the analysis of product markets in healthcare sectors, which requires that the consequences of a concentration are analysed by patient groups rather than by market.27 Indeed, the ACM had concerns for particular patient groups,28 but St Jansdal was saved by the causal link. The ACM held that, due to the bankruptcy of IJsselmeerziekenhuizen, absent the acquisition by St Jansdal competition and patients would be worse off, and that an acquisition by another interested buyer would not be better.

Brocacef was allowed to acquire 20 pharmacies from Thio.29 The ACM held that the acquisition did not change the conditions on the market as Thio already had a partnership with Brocacef and did not, in practice, compete with Brocacef.

iv Phase II cases

The proposed acquisition of LipsPlus by its rival CleanLease30 went into Phase II as the ACM was concerned about the strong position of the parties in the market for the cleaning of hospital laundry. However, in Phase II the ACM allowed the acquisition without remedies. It found that the market shares of the parties had been declining and that smaller competitors exercised considerable pressure on the parties, helped by the tendering processes organised by relevant hospitals.

The acquisition of Iddink by Sanoma31 notably concerned three markets: the publishing of hardcopy and digital educational materials for secondary schools (Sanoma had a 25 per cent share); the distribution of educational materials (Iddink had a 30 per cent share); and the supply of learning management systems (LMS) (comprising student administration systems and e-portals: Iddink had a 70 to 80 per cent share). The ACM found that the parties could hinder competition by providing (1) better compatibility for Sanoma's materials in Iddink's LMS, and (2) commercially relevant data regarding competing publishers (obtained through Iddink's LMS) to Sanoma. The ACM imposed behavioural remedies32 for an indefinite duration: competing publishers must be able to connect to Iddink's LMS on fair, reasonable and non-discriminatory terms and must receive access to relevant data from the LMS on equal terms as Sanoma. In addition, Chinese Walls must be erected between Iddink's LMS and Sanoma's publishing branches.

PostNL, the Dutch incumbent postal operator, agreed to acquire its only national competitor, Sandd.33 The ACM found, after extensive research in Phase II – including the study of many internal documents of the parties – that the acquisition would lead to a price increase of 30 to 40 per cent for business senders and that the prices for consumers would also increase. Importantly, the ACM held that electronic post does not exert pricing pressure on standard post. The ACM was not convinced that, absent the acquisition, one of the two parties would disappear from the market due to the decline of postal volumes. Neither did the ACM believe that the – undisputed – efficiencies resulting from the integration of the networks, would offset the lessening of competition. Finally, the ACM did not believe that the acquisition was necessary for maintaining the Universal Service Obligation. Consequently, it prohibited the acquisition.

Subsequently, the Minister of Economic Affairs used – for the first time ever – its statutory power to overrule the ACM and allowed the acquisition. Notably, the Minister invoked the maintenance of the Universal Service Obligation.

Notably, postal workers' working conditions had deteriorated due to the heavy competition between PostNL and Sandd, which may have played a role in the Ministerial permission for the acquisition.

v Exemptions from the standstill period

The ACM granted two exemptions from the standstill period in 2019, both in the healthcare sector and both resulting from the target being bankrupt or running an immediate risk of going bankrupt.34 In both cases, the ACM seems to have acted quickly and in a rather pragmatic way.

vi Reports and position papers

In 2019, the Belgian, Dutch and Luxembourg competition authorities jointly published a memorandum on the challenges faced by competition authorities in the digital economy.35 The memorandum argues, first, that it would be useful for the European Community (EC) to commission an economic study on merger control in the digital sector, especially in relation to dominant platforms with quickly growing user bases. Second, it exhorts competition authorities to provide ex ante guidance to operators in the digital economy. Third, the memorandum invites the EC and national competition authorities to develop an approach that would sidestep the infringement route in a much less formal, fast-track procedure, with the goal of obtaining commitments from relevant parties. Finally, the memorandum suggests the introduction of a new ex ante intervention tool to target specific behaviour of dominant companies in markets with winner-takes-most dynamics. The tool should be ex ante allowing authorities to act before a market has tipped, and non-punitive to prevent long procedures and to obtain concessions from the market operators.

This memorandum is thought to have been strategically introduced to float ideas that the EC could pick up on – as it has indeed done – if they were well received.

III THE MERGER CONTROL REGIME

i Merger control thresholds

Article 29 of the DCA provides that a concentration must be notified if:

  1. the combined turnover of all undertakings concerned exceeds €150 million in the calendar year preceding the concentration; and
  2. 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.36

Healthcare undertakings

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).37 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 relevant thresholds.

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:

  1. the combined turnover of all undertakings concerned exceeds €55 million in the calendar year preceding the concentration; and
  2. of this turnover, at least two of the undertakings concerned each achieved at least €10 million in the Netherlands.38

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).

Pension funds

Any type of pension fund will be regarded as an undertaking for competition law purposes. New thresholds have applied since 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.39

ii Investigation phases

Notification phase

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 ACM 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.

Licence phase

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 ACM 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

In the Netherlands, if a concentration is prohibited, there is a possibility of requesting the Minister of Economic Affairs to grant a licence for serious reasons of general interest. In 2019, the Minister did so for the first time.40

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 ACM asks formal questions requiring additional information on the concentration. Because of 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 Coöperatie Vlietland/Vlietland Ziekenhuis.41 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. If the intended concentration does not pose any problems, the ACM may prefer to take a final clearance decision within a couple of days instead of granting an exemption.

In the case of exemptions, the concentration must be unwound if it is subsequently prohibited by the authority.

iv Other procedural aspects

Third parties

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 ACM also actively gathers information by sending out questionnaires or by interviewing third parties. The ACM is aware that competitors may have strategic reasons to be critical of a contemplated concentration, but it attaches more weight to the comments of customers – especially the comments of health insurers in cases concerning healthcare suppliers.

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.42

Remedies

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.43 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,44 but does require, inter alia:

  1. the proposal to be in writing;
  2. a detailed description of the nature and size of the remedy;
  3. a note on how all indicated competition concerns will be eliminated;
  4. if applicable, the steps required to divest a part of the undertaking and the timeline for such;
  5. a non-confidential version of the proposal; and
  6. 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 before 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.45

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 the case of recidivism. On the basis of Articles 2.5 and 2.6 of the 2014 ACM Fining Policy Rule,46 the ACM sets the fine at €400,000 to €700,000 or 5 per cent of the total Dutch turnover in the preceding financial year for the buyer – whichever is higher. However, the ACM has substantial leeway to increase the resulting amount of the fine if it deems it to be too low. This fine may be doubled in the case of recidivism.

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 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.

Sanction decisions

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 ACM. The ACM is required to react to such queries, and does so within two weeks (often within days).

V OUTLOOK and CONCLUSIONS

The ACM generally remains quite realistic in its analyses in the field of merger control. An interesting development is that the ACM has, for the first time in a long period, accepted behavioural remedies.47 Consistent with enforcement trends in the EU, the ACM is very keen to investigate all aspects of the digital economy, particularly where platforms are involved.

Unfortunately, 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 did not issue any informal opinions in 2019.

A major challenge is the healthcare-specific merger test of the NZa.48 The Minister had proposed to transfer this test to the ACM, which may bring some procedural efficiency, on 1 January 2017.49 The transfer would not affect the essence of the test and hence will continue to pose a heavy administrative burden on the parties involved. At the time of writing, the legislative proposal had not been adopted by the Dutch parliament.50

An even bigger challenge, at least for hospital mergers, may be posed by the proposal to ban mergers between healthcare providers that demonstrably have significant market power, unless the concentration would result in significant efficiencies. This was originally published by the ACM in 2018 (on request of the Dutch Ministry for Health, Welfare and Sport).51 At the time of writing, the Dutch Minister for Health, Welfare and Sport further supported the proposed ban of healthcare mergers in its letter to the Dutch Lower House.52 This initiative, combined with the new best practices of the ACM regarding healthcare mergers,53 seems to have had its desired effect already, as the number of hospital mergers has reduced dramatically. The cases discussed in Section II.iii are illustrative of this: the two hospital mergers were only permitted due to bankruptcy on the part of the target.

The general EU trend to be more cautious about foreign direct investment continues. In 2018, the Dutch government submitted a bill to parliament to protect companies in the Dutch telecoms sector against unwanted acquisition or exercise of control. The proposal aimed to enable the Dutch Cabinet to prevent any 'undesirable' mergers by foreign companies that can be linked to criminal activities, are financially vulnerable or have a non-transparent corporate structure, has been unanimously adopted by the House of Representatives.54 Furthermore, in 2019, the legislative debates on additional legal mechanisms to protect companies from hostile takeovers led to the submission of a bill introducing a statutory cooling-off period for Dutch-listed companies, allowing the management board of a listed company more time to draw up a statement of affairs and weigh up the interest of the company and its stakeholders.55 At the time of writing, the proposed bill was still under examination by the Dutch House of Representatives.56


Footnotes

1 Gerrit Oosterhuis and Weyer VerLoren van Themaat are partners at Houthoff.

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 on 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, see the European Union chapter.

5 Statistics from the ACM Annual Report 2019 (Dutch version) at page 30 (www.acm.nl/sites/default/files/documents/2020-03/jaarverslag-acm-2019.pdf) and the ACM Annual Report 2018 (Dutch version) at page 28 (www.acm.nl/sites/default/files/documents/2019-04/jaarverslag-2018.pdf).

6 The decisions in Phase II concern the following: Decision ACM 28 August 2019 (Sanoma/Iddink) Case ACM/19/035555; Decision ACM 29 August 2019 (Active Capital Company/LipsPlus) Case ACM/19/035860; and Decision ACM 5 September 2019 (PostNL/Sandd) Case ACM/19/035460.

7 The decisions concern the following: Decision ACM 24 April 2019 (Stichting Zorggroep Apeldoorn en Omstreken/Stichting Trimenzo) Case ACM/19/035178; Decision ACM 2 May 2019 (Stichting OLVG Afdelingen/Slotervaartziekenhuis) Case ACM/18/034722; Decision ACM 17 July 2019 (Ziekenhuis St. Jansdal/Locatie Lelystad MC IJsselmeerziekenhuizen) Case ACM/19/034888; and Decision ACM 15 November 2019 (Stichting Sensire/Stichting Trimenzo) Case ACM/19/036556.

8 Decision ACM 17 October 2019 (BENU Apotheken/20 apotheken van Thio) Case ACM/19/036154.

9 Decision ACM 8 January 2019 (Hilton Foods Limited/Dalco Food) Case ACM/18/034486.

10 Decision ACM 27 September 2019 (Banketgroep Holding International/Nieuwko Holding) Case ACM/19/036102.

11 Decision ACM 20 December 2019 (KidsFoundation/Partou) Case ACM/19/035829.

12 Decision ACM 18 November 2019 (NN/Vivat) Case ACM/19/036284.

13 Decision ACM 28 August 2019 (Sanoma/Iddink) Case ACM/19/035555 and Decision ACM 29 August 2019 (Active Capital Company/LipsPlus) Case ACM/19/035860.

14 Decision ACM 5 September 2019 (PostNL/Sandd) Case ACM/19/035460.

15 See Section II.iv.

16 Decision ACM 5 February 2019 (Ziekenhuis St. Jansdal/Locatie Lelystad MC IJsselmeerziekenhuizen) Case ACM/19/034888; Decision ACM 5 September 2019 (Mirage/Green Swan) Case ACM/19/036357; and Decision ACM 11 October 2019 (Stichting Sensire/Stichting Trimenzo) Case ACM/19/036556.

17 Trade and Industry Appeals Tribunal, 8 October 2019 (Mosadex e.a./ACM) ECLI:NL:CBB:2019:474.

18 Decision ACM 13 June 2016 (Brocacef/Mediq) Case ACM 0849.24.

19 Rotterdam District Court, 7 September 2017 (Mosadex e.a./ACM) ECLI:NL:RBROT:2017:6833), discussed in the eighth and ninth editions of The Merger Control Review.

20 Decision ACM 18 November 2019 (NN/Vivat) Case ACM/19/036284.

21 Decision ACM 27 September 2019 (Banketgroep Holding International/Nieuwko Holding) Case ACM/19/036102.

22 Decision ACM 20 December 2019 (KidsFoundation/Partou) Case ACM/19/035829.

23 Decision ACM 8 January 2019 (Hilton Foods Limited/Dalco Food) Case ACM/18/034486.

24 Decision ACM 24 April 2019 (Stichting Zorggroep Apeldoorn en Omstreken/Stichting Trimenzo) Case ACM/19/035178.

25 Decision ACM 2 May 2019 (Stichting OLVG Afdelingen/Slotervaartziekenhuis) Case ACM/18/034722.

26 Decision ACM 17 July 2019 (Ziekenhuis St. Jansdal/Locatie Lelystad MC IJsselmeerziekenhuizen) Case ACM/19/034888.

27 ACM, Merger filings in specialist medical care (Fusiemeldingen in de medisch-specialistische zorg), Best Practices of 28 December 2018 (see www.acm.nl/sites/default/files/documents/werkwijze-analyse-productmarkten-msz.pdf). See also the authors' discussion of best practices in the 10th edition of The Merger Control Review.

28 The ACM also thought that the most important health insurance company would not be able to discipline St Jansdal Hospital after the acquisition. Interestingly, the health insurance company itself did not have this concern.

29 Decision ACM 17 October 2019 (BENU Apotheken/20 apotheken van Thio) Case ACM/19/036154.

30 Decision ACM 29 August 2019 (Active Capital Company/LipsPlus) Case ACM/19/035860.

31 Decision ACM 28 August 2019 (Sanoma/Iddink) Case ACM/19/035555.

32 Normally, the ACM only accepts structural remedies.

33 Decision ACM 5 September 2019 (PostNL/Sandd) Case ACM/19/035460.

34 Decision ACM 11 October 2019 (Stichting Sensire/Stichting Trimenzo) Case ACM/19/036556; and Decision ACM 5 February 2019 (Ziekenhuis St. Jansdal/Locatie Lelystad MC IJsselmeerziekenhuizen) Case ACM/19/034888.

36 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.

37 The relevant amendment to the Health Care (Market Regulation) Act was voted on 26 November 2013 and is applicable as of 1 January 2014.

38 These thresholds will continue to apply until at least 1 January 2023.

39 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).

40 See Section II.iv.

41 Decision NMa 18 February 2010 (Coöperatie Vlietland/Vlietland Ziekenhuis), Case No. 6669.

42 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).

43 Remedies guidelines 2007. This section is based on these guidelines.

44 In its guidelines, the authority does refer to model texts from the European Commission.

45 For example, the €2 million fine imposed on Wegener; for more information, see the Netherlands chapter in the fourth edition of The Merger Control Review.

46 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).

47 See Sanoma/Iddink, Section II.iv.

48 Article 49 of the Health Care (Market Regulation) Act of 1 October 2006.

49 Proposal of Law of 8 April 2016, 34445.

51 ACM, Letter to the Minister for Health, Welfare and Sport, 19 July 2018, regarding Reaction ACM to requests by the Minister for suggestions to intensify merger control (Reactie ACM op verzoeken Minister om suggesties voor verscherping fusietoezicht), see www.rijksoverheid.nl/documenten/brieven/2018/10/22/reactie-autoriteit-consument-markt-op-verzoeken-minister-om-suggesties-voor-verscherping-fusietoezicht.

53 These best practices were discussed in the 10th edition of The Merger Control Review.

55 See Proposal of Law of 18 December 2019, 35367.