The NMa has qualified a non-competition obligation and a non-solicitation clause imposed on (in)direct shareholders in the context of a merger as an ancillary restraint for the duration of their shareholding in the company to be established. In addition, it considered a non-compete on two specific shareholders for a duration of two years after termination of their holding shares as ancillary.[12]

The NMa underlined in regard to the post-term non-compete obligation that this obligation will only qualify as an ancillary restraint if the business operations of the new company still significantly depend on the relevant shareholder at the time of termination.

In line with the European Commission’s Notice on ancillary restraints[13], the NMa also took account of the fact that the scope of the clauses was limited to the area and the products in which the shareholders were active before the merger.