The Merger Control Review: Netherlands
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.
Year in review
The ACM received 89 notifications and reached 90 decisions in Phase I in 2020, which is significantly less than the workload in 2019 (134 notifications and 127 decisions in Phase I decisions).5 The majority of notifications resulted in one-page short decisions. Only nine Phase I decisions were substantiated (with reasons, the same amount as in 2019). In addition, the ACM received four requests for decisions in Phase II and issued six decisions in Phase II, compared with one of each in 2019.
The workload of the ACM reflects that during the first lockdown many transactions involving small and medium-sized enterprises and private equity were put on hold, whereas larger strategic deals continued. Moreover, it shows that the ACM is increasingly investigating cases in Phase II.
The ACM issued no prohibition decisions, but in five cases remedies were required.6 The ACM granted one exemption from the standstill period in the healthcare sector.7 The ACM did not impose any fines for a failure to notify a concentration in 2020.
ii Infringements of formal obligations and legal proceedings
One of the few judgments regarding merger control in 2020 concerned the ruling of the Trade and Industry Appeals Tribunal (CBb) of 10 November.8 The case can be traced back to 2016 when the ACM approved the acquisition of the Staatsloterij and the Lotto. The ACM held that a strict scrutiny of the anticompetitive effects of a concentration is only necessary in markets with free competition and homogenous products. This was not the situation in the case at hand. This is because the law on gambling imposes that only one party can be licensed per type of game of chance.
In the appeal before the Rotterdam District Court, competitors argued, inter alia, that the ACM did not sufficiently take into account the acquisition's possible anticompetitive effects on the (future) market of online gambling. The Court rejected this appeal, stating that the parties faced international competitors with important digital platforms.
In appeal, the CBb confirmed the verdict of the Rotterdam District Court. The ACM had used a regression analysis to determine how strongly the sales of different types of games of chance of one party would react to that party's own price and the price of alternative games of chance. The CBb held that the regression analysis showed that the Staatsloterij and the Lotto formed limited competitive constraints on each other, and that the merger would not lead to a significant decrease of competition.
Another case concerns the appeals against the ministerial approval of PostNL's acquisition of its only competitor, Sandd. In September 2019, the ACM had blocked the transaction based on competition concerns in the markets for business and individual mail delivery. Three weeks later, the prohibition by the ACM was overruled by the Secretary of State for Economic Affairs and Climate based on public interest grounds.9 Subsequently, by a judgment of 11 June 2020, the Rotterdam District Court annulled the Secretary of State's decision and referred it back to the Secretary of State.10 The Court found that the third parties had not been granted enough time to present their views and that the decision of the Secretary of State was therefore not sufficiently substantiated. The Court concluded that the Secretary of State should have assessed the competitive effects on the adjacent market of package delivery. Moreover, it ruled that the Secretary of State should have provided better reasoning for the overriding public interest, including how the decision was essential to guarantee PostNL's universal postal service obligation and how it would contribute to the protection of employment.
iii Phase I decisions
The ACM approved the acquisition by Audax Group BV, a distributor and retailer of magazines, international newspapers and books, of Bruna, a competitor in the retail sector.11 The ACM concluded that the horizontal overlap would remain below 25 per cent. The ACM also assessed vertical foreclosure effects on the market for the distribution of magazines, as only two players were active on this market, including Audax. Based on Audax's limited market share of 30 per cent, the ACM ruled out vertical foreclosure.
The ACM approved the acquisition by Digital Realty Trust, a US data centre colocation services provider, of its Dutch counterpart, InterXion.12 Colocation services providers supply data centre space and equipment for third parties. The ACM concluded that the acquisition would not significantly reduce competition for the supply of colocation services by data centres in the metropolitan region of Amsterdam as the combined market share would remain below 30 per cent. The ACM also found that the foreclosure of downstream competitors on the market for the supply of internet hubs was improbable because of this limited market share.
The ACM approved the acquisition of Sanoma Media (free online news and magazines) by DPG Media (several national newspapers, online news and radio).13 Regarding the segment of free online news, the ACM concluded that there were sufficient alternative providers such as NOS, RTL and websites of national newspapers. Regarding the sale of advertising space, the ACM found that this market is characterised by exponential growth and powerful competitors such as Facebook and Google. Also, the ACM found that both parties use freelance journalists to a very limited extent and consequently the transaction only has a small effect on the purchase of (freelance) journalistic services.
The ACM approved a joint venture (JV) between the national rail incumbent and the public transport undertakings of Amsterdam, Rotterdam and The Hague.14 The JV would create a wholesale 'mobility as a service' (MaaS) platform, connecting mobility providers and MaaS providers by providing technical interconnection services to MaaS providers and mobility providers. The ACM found four threats to competition but accepted behavioural remedies.
|Threat to competition||Behavioural remedy accepted by the ACM|
|Bundling access to participating transport services with platform services||Unbundled access to the transport services|
|Discriminatory pricing towards competing MaaS providers||No exclusive purchasing|
|Discriminatory pricing towards competing mobility providers||Fair, reasonable and non-discriminatory conditions|
|Access to commercially sensitive information, giving the participants an advantage over their competitors||Firewall for sensitive information|
The ACM conditionally cleared a JV between Pon Netherlands BV and Dutch rail incumbent NS.15 The JV would combine their respective MaaS platforms to link rail services with Pon's bikes, e-bikes and cars. To resolve vertical foreclosure risks, the ACM imposed behavioural remedies, including the commitment by NS to provide equal access to its services, notably through access to its application programming interfaces.
The acquisition of regional publisher of daily newspapers NDC by its national competitor Mediahuis was not deemed problematic in the markets for readers or advertisers.16 However, NDC's network for the delivery of morning newspapers in the north of the Netherlands is used by all newspaper publishers, including Mediahuis' biggest competitor, DPG. As a remedy, Mediahuis committed to grant access to publishers without their own distribution network and to maintain the level of quality and prices.
Hutchison Ports Netherlands – owner of the ECT container terminal – was allowed to acquire the container terminal APMT-R from Maersk in the port of Rotterdam.17 The ACM found that the increase in market share was limited, as much of its volume was captive from Maersk shipping, and that shippers have strong bargaining positions. No risk was found in the market for transit traffic in the Hamburg–Le Havre range, nor in the market for hinterland traffic in the (at the minimum) Antwerp–Rotterdam range.
The concentration between educational institutions LOI and NCOI is discussed in Section II.iv.18
iv Phase II cases
Corendon and Sunweb, two travel agencies, would have a significant combined market share in the national market for sun holidays to long-haul and medium-haul destinations.19 Equally large competitor TUI, as well as many smaller parties, would maintain competitive pressure. The ACM ruled out coordination between the new entity and TUI as this would be difficult due to the substitutability of the destinations and by the influence of geopolitical events on the travel movements of consumers. In a twist, Sunweb pulled out of the deal as the coronavirus crisis had changed market dynamics. Corendon demanded execution of the transaction, but this was denied by the court in preliminary proceedings.
The ACM granted a licence for the takeover of LOI by NCOI.20 The parties are both private educational institutions that offer (mainly part-time) courses at accredited higher professional education level and accredited secondary professional education level, as well as various non-accredited courses. Extensive market research in Phase II pointed to separate markets for part-time and full-time accredited education. The activities of the parties overlapped in the part-time segment only, where sufficient competition would remain, notably due to competition by public institutions. In the market of non-accredited courses, a sufficient number of other providers with a broad range of options were active alongside niche players with specialised offerings.
The ACM approved a full function JV to which building companies BAM and Heijmans transferred 10 asphalt plants.21 The ACM investigated whether the JV could lead to the foreclosure of road construction companies from the supply of asphalt or to higher asphalt prices. The ACM concluded that sufficient alternatives existed, even in the local markets. Important factors preventing foreclosure were ease of switching, low transport costs of asphalt and lasting overcapacity in the asphalt market to the effect that BAM and Heijmans will remain dependent on supplies to third parties.
The ACM granted a licence for the merger of three elderly care homes, including de Schakelring.22 The market research showed that patients had a strong preference for a provider in their immediate vicinity, to the effect that the parties were not usually alternatives for each other. In addition, larger competitors remained present. In the care procurement markets the parties obtained relatively low market shares of 20 per cent to 30 per cent at the most, in the narrowest market. Finally, none of the health insurers expected negative consequences of the merger.
The ACM approved the acquisition by Stichting Omring of Stichting Vrijwaard with conditions.23 The parties are both elderly care institutions with a diverse range of care services, including somatic and psychogeriatric nursing home care. The ACM concluded that the acquisition would lead to a significant impediment of competition in the markets for somatic and psychogeriatric nursing home care, due to very high market shares of up to 90 per cent in the local markets. Consequently, Omring had to sell some of its locations to a third party.
The ACM approved the acquisition of parts of Careyn by Thebe with conditions.24 The ACM found that, as a result of the proposed acquisition, competition would be significantly impeded in the market for district nursing and home care in a number of communities in the south of the Netherlands. The ACM accepted the parties' remedy proposals to divest certain local teams and clients.
v Reports and position papers
In 2019, the ACM, for the first time, outlined its ideas on an ex ante enforcement instrument for addressing possible competition problems in relation to digital platforms with gatekeeper positions.25 In 2020, the ACM affirmed its view on the desirability of an ex ante enforcement instrument.
The ACM supported the European Commission's initiative for a new competition tool (NCT) in its contribution to the consultation in the context of the Digital Services Act Package. According to the ACM, the NCT 'should be complementary to the existing competition instruments (article 101, 102 TFEU and the Merger Regulation) and be able to address structural competition problems that cannot be tackled effectively by the existing competition instruments'.26 In its contribution, the ACM, inter alia, elaborates on: (1) 'the potential structural competition problems which may not be addressed effectively or sufficiently efficient with the existing competition instruments'; (2) the potential scope of application of the NCT; (3) the desirable threshold for intervention; and (4) the proportionality of possible remedies.27 The ACM also emphasised the need for an additional ex ante enforcement instrument in its report of 16 November 2020 on big tech firms in the payment industry.28
The merger control regime
i Merger control thresholds
Article 29 of the DCA provides that a concentration must be notified if:
- the combined turnover of all undertakings concerned exceeds €150 million in the calendar year preceding the concentration; and
- 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.29
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).30 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:
- the combined turnover of all undertakings concerned exceeds €55 million in the calendar year preceding the concentration; and
- of this turnover, at least two of the undertakings concerned each achieved at least €10 million in the Netherlands.31
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 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.32
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 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.
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.33
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 Coöperatie Vlietland/Vlietland Ziekenhuis case.34 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
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.35
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.36 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,37 but does require, inter alia:
- the proposal to be in writing;
- a detailed description of the nature and size of the remedy;
- a note on how all indicated competition concerns will be eliminated;
- if applicable, the steps required to divest a part of the undertaking and the timeline for this;
- a non-confidential version of the proposal; and
- 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.38
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,39 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.
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.
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).
Outlook and conclusions
The ACM generally remains quite realistic in its merger control analyses. In 2019, it accepted a behavioural remedy after a long period during which it only accepted structural remedies.40 In 2020, the ACM accepted at least three behavioural remedies.41 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. This was especially clear in the cases concerning MaaS, in which the ACM imposed behavioural remedies in both cases.42 It also ties in with the efforts of the ACM to keep alleged gatekeepers in check through supporting the EU Digital Markets Act or in other ways.
Unfortunately, the ACM's continuing policy of issuing 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 is increasingly scrutinising mergers in the healthcare sector – assessing the effects of merger and available competitors per type of treatment in rather narrow geographical areas. The ACM has a separate department tasked with healthcare sector market regulation, including merger review. The ACM tends to start Phase II reviews willingly. In 2020, three of the six Phase II merger cases were in the healthcare sector; these reviews included detailed assessments of local effects for patients and healthcare insurers.43
The general EU trend to be more cautious about foreign direct investment continued in 2020. The legislative debates on additional legal mechanisms to protect companies from hostile takeovers led to the adoption of an act introducing a statutory cooling-off period of 250 days 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.44 Additionally, an act providing for a foreign direct investment filing obligation for mergers in the telecoms sector has been adopted.45
A further development concerns the publishing for consultation of a bill setting up a general ex ante screening mechanism for investments in vital process or sensitive technology companies (the Economy and National security Review Bill).46 The bill will provide for a suspensory filing obligation for any acquisition of relevant targets. Additionally, the Dutch Minister of Defence is currently preparing a bill regarding the protection of the Dutch defence technological and industrial base. The bill will introduce a sector-specific test to complement the Economy and National Security Review Bill.
A trend is that third parties are appealing merger cases more often. This has led to a greater scrutiny by the ACM of cases in which it anticipates that its decision will be appealed, which has, in turn, led to more Phase II cases. In addition, it seems that the ACM is more readily sending cases to Phase II as this gives it greater scope to conduct market surveys. This development is not all bad, as Phase I decisions may have previously dragged on for too long. The 'second generation' Phase II cases can be wound up relatively quickly upon completion of the ACM's surveys, to the effect that they do not necessarily drag on as some of the older Phase II cases did.
1 Gerrit Oosterhuis and Weijer 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 2020 (Dutch version) at page 33 (http://www.acm.nl/sites/default/files/documents/jaarverslag-acm-2020.pdf) and the ACM Annual Report 2019 (Dutch version) at page 30 (http://www.acm.nl/sites/default/files/documents/2020-03/jaarverslag-acm-2019.pdf).
6 Decision ACM 5 August 2020 (Omring/Vrijwaard/Hulp Thuis Vrijwaard) Case ACM/19/037144; Decision ACM 3 November 2020 (Thebe Wijkverpleging/Careyn) Case ACM/20/040077; Decision ACM 20 May 2020 (NS/Pon) Case ACM/20/038614; Decision ACM 9 July 2020 (GVB/HTM/NS/RET) Case ACM/20/039644; Decision ACM 30 November 2020 (Mediahuis/NDC Group) Case ACM/20/042189.
7 Decision ACM 30 January 2020 (Korian/BPG) Case ACM/20/038750.
8 Trade and Industry Appeals Tribunal, 8 October 2019 (Lottovate B.V. and Stichting Speel Verantwoord/ACM) ECLI:NL:CBB:2020:799.
9 Article 47, Dutch Competition Act.
10 Rotterdam District Court 11 June 2020 (Eiseres 1 & 2 v. Secretary of State for Economic Affairs and Climate) ECLI:NL:RBROT:2020:5122.
11 Decision ACM 13 January 2020 (Audax/Bruna) Case ACM/19/037542.
12 Decision ACM 7 February 2020 (Digital Realty/InterXion) Case ACM/19/038019.
13 Decision ACM 10 April 2020 (DPG Media/Sanoma) Case ACM/19/038207.
14 Decision ACM 9 July 2020 (GVB/HTM/NS/RET) Case ACM/20/039644.
15 Decision ACM 20 May 2020 (NS/Pon) Case ACM/20/038614.
16 Decision ACM 30 November 2020 (Mediahuis/NDC Group) Case ACM/20/042189.
17 Decision ACM 15 October 2020 (Hutchison Ports/APM Terminals Rotterdam) Case ACM/20/040727.
18 Decision ACM 20 May 2020 (NCOI/TIO) Case ACM/20/039041.
19 Decision ACM 26 October 2020 (Sunweb/Corendon) Case ACM/20/041207.
20 Decision ACM 13 August 2020 (NCOI/LOI) Case ACM/20/039040.
21 Decision ACM 13 February 2020 (BAM/Heijmans) Case ACM/19/036914.
22 Decision ACM 21 February 2020 (Schakelring/De Riethorst Stromenland/Volckaert) Case ACM/19/037511.
23 Decision ACM 5 August 2020 (Omring/Vrijwaard/Hulp Thuis Vrijwaard) Case ACM/19/037144.
24 Decision ACM 3 November 2020 (Thebe Wijkverpleging/Careyn) Case ACM/20/040077.
25 See joint memorandum of the Belgian, Dutch and Luxembourg competition authorities on challenges faced by competition authorities in a digital world, 2 October 2019, and ACM: 'Extension of enforcement toolkit to increase effectiveness in dealing with competition problems in the digital economy'.
26 See Annex 2 to the response of the ACM. See http://www.acm.nl/sites/default/files/documents/2020-09/bijlage-2-acm-response-nct.pdf.
28 'Big Techs in het betalingsverkeer', 16 November 2020, http://www.acm.nl/sites/default/files/documents/big-techs-in-het-betalingsverkeer.pdf.
29 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.
30 The relevant amendment to the Health Care (Market Regulation) Act was voted on on 26 November 2013 and is applicable as of 1 January 2014.
31 These thresholds will continue to apply until at least 1 January 2023.
32 The 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).
33 See Section II.ii.
34 Decision NMa 18 February 2010 (Coöperatie Vlietland/Vlietland Ziekenhuis) Case No. 6669.
35 The ACM has published 'rules of the game for merger control procedures' providing detailed information on its approach in merger control cases, available at http://www.acm.nl/nl/download/publicatie/?id=11348 (in Dutch).
36 Remedies guidelines 2007. This section is based on these guidelines.
37 In its guidelines, the authority does refer to model texts from the European Commission.
38 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.
39 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 (http://www.acm.nl/en/download/attachment/?id=12098).
40 Decision ACM 28 August 2019 (Sanoma/Iddink) Case ACM/19/035555.
41 Decision ACM 20 May 2020 (NS/Pon) Case ACM/20/038614; Decision ACM 9 July 2020 (GVB/HTM/NS/RET) Case ACM/20/039644; Decision ACM 30 November 2020 (Mediahuis/NDC Group) Case ACM/20/042189.
42 Decision ACM 9 July 2020 (GVB/HTM/NS/RET) Case ACM/20/039644; Decision ACM 20 May 2020 (NS/Pon) Case ACM/20/038614.
43 Decision ACM 21 February 2020 (Schakelring/De Riethorst Stromenland/Volckaert) Case ACM/19/037511; Decision ACM 5 August 2020 (Omring/Vrijwaard/Hulp Thuis Vrijwaard) Case ACM/19/037144; Decision ACM 3 November 2020 (Thebe Wijkverpleging/Careyn) Case ACM/20/040077.
44 Article 2:114b, Dutch Civil Code.
45 Chapter 14a, Dutch Telecommunication Act.