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Under what circumstances is a transaction caught by merger control legislation?

Transactions are caught by the legislation if they involve a change of control and the thresholds are met.

The following transactions are not caught by the legislation:

  • temporary (in principle, up to one year after acquisition) participations of banks, financial institutions or insurers, as long as they do not exercise their voting rights to influence the behaviour of the undertaking on the market;
  • control obtained by receivers and administrators in the context of the Bankruptcy Act or the Financial Supervision Act; and
  • the acquisition of a participating interest in the capital of an undertaking by venture capital undertakings, provided that the voting rights attached to the participating interest are exercised only to safeguard the full value of the investments.

Transactions involving public bids or exchanges aimed at participating in the capital of an undertaking need not be notified, provided that the ACM is informed immediately and the acquiring party does not exercise the voting rights attached to the participation.

The Dutch Healthcare Authority does not require healthcare providers to notify the following transactions:

  • temporary participations of financial institutions;
  • control obtained by receivers and administrators in the context of the Bankruptcy Act or the Financial Supervision Act; and
  • acquisitions of control by venture capital undertakings, as long as their voting rights are exercised for investment purposes only.

Do thresholds apply to determine when a transaction is caught by merger control legislation?

Authority for Consumers & Markets – general thresholds 
A merger notification to the Authority for Consumers & Markets (ACM) is required if, in the preceding calendar year:

  • the undertakings’ combined worldwide turnover exceeded €150 million; and
  • at least two of the undertakings concerned each have turnover in the Netherlands of €30 million or more.

Authority for Consumers & Markets – healthcare thresholds 
Lower ACM thresholds apply to mergers in the healthcare sector. These will continue to apply until at least January 1 2018. Mergers in the healthcare sector must be notified to the ACM if, in the preceding calendar year, the undertakings had a turnover of:

  • €5.5 million each in relation to the provision and supply of healthcare in the Netherlands;
  • €10 million each in the Netherlands (including turnover not related to the provision and supply of healthcare); and
  • €55 million combined worldwide (including turnover not related to the provision and supply of healthcare).

Dutch Healthcare Authority – healthcare thresholds
In the healthcare sector, transactions involving a healthcare provider that has 50 or more people providing healthcare services and another organisation requires prior clearance by the Dutch Healthcare Authority (NZa).

Calculation of turnover
The ACM generally requires the undertakings concerned to provide their net turnover. The ACM tends to follow the calculation methods set out in the European Commission’s Consolidated Jurisdictional Notice under Council Regulation (EC) 139/2004 on the Control of Concentrations between Undertakings. For banks and financial institutions, the ACM does not require the parties to provide their net turnover, but instead requires the sum of a number of their assets (ie, interest income and similar assets, proceeds from value instruments, commissions received, results from financial transactions and other business proceeds). Insurers need not provide their turnover, but must provide their gross premiums written.