Use the Lexology Navigator tool to compare the answers in the article with those from 20+ other jurisdictions.
Is the notification process voluntary or mandatory?
Notification to the ACM is mandatory if a concentration meets the turnover thresholds as set out in the Competition Act and the concentration is not subject to the EU merger control regime.
What timing requirements apply when filing a notification?
No deadlines apply for the parties under which they are obliged to notify their concentration to the ACM (or request a permit if required), as long as closing does not take place before clearance. Of course, the timetable towards closing of the transaction should allow sufficient time for the ACM to conduct its review (see the section titled “Procedure and test”). In addition, the ACM demands that there exist a reasonable degree of certainty that the transaction will take place, and that the envisaged structure of control (eg, whether sole or joint control is obtained) is more or less certain. A signed contract is not required for a notification. A sufficiently detailed letter of intent or an advanced draft of an agreement will normally suffice.
Can a merger be implemented before clearance is obtained?
As a general rule, a concentration may not be implemented before clearance is obtained. However, a few exceptions apply. First, if the ACM fails to decide in Phase I whether a permit is required within the applicable waiting period of four weeks, then, by law, no permit is required and the notifying parties are free to implement the concentration (Article 37(5) of the Competition Act). Likewise, in Phase II, a permit is deemed to have been issued if the ACM does not reach a decision within the applicable 13 weeks’ waiting period (Article 44(1)). These deadlines may be prolonged (see the section titled “Procedure and test”).
Second, no prior clearance is required in case of a public bid, provided that the ACM is notified promptly after the transaction was consummated, and that the acquiring party does not exercise its voting rights (Article 39(1) of the Competition Act). The ACM may, on request, grant the acquiring party permission to execute in the legitimate protection of its financial interests prior to the ACM’s clearance (Article 39(3)). If the ACM refuses to clear the transaction, the merger must be dissolved within 13 weeks (Article 39(2)).
Third, the ACM may grant an exemption of the prohibition to await clearance if the notifying parties request the ACM to do so (Article 40 of the Competition Act). Such an exemption does not discharge the parties from their obligation to notify the concentration prior to its consummation and may be granted only if there are important reasons that would lead to irreparable damage if the parties had to wait for the clearance decision (eg, an eminent bankruptcy).
A violation of the ‘standstill obligation’ may result in penalties (including fines), which are further outlined below.
What guidance is available from the authorities?
The most important guidance document regarding matters of jurisdiction is the Consolidated Jurisdictional Notice of the European Commission, which is applied by the ACM as well. In addition, the ACM has published a guidance document that aims to provide information as to the daily practice in concentration cases. In matters of substance, the Policy Rule on the Appreciation of Horizontal Mergers by the ACM provides that the ACM shall assess horizontal concentrations in accordance with the European Commission’s Guidelines on the Assessment of Horizontal Mergers under the Merger Regulation. As already observed, the ACM is in general prepared to give informal guidance regarding jurisdictional matters in individual cases and welcomes pre-notification discussions in more complex cases.
Guidance with regard to market definitions that the ACM may apply can be obtained from previous merger control decisions from the ACM and/or the European Commission. The ACM generally follows these precedents, but is under no obligation to do so. In particular, the ACM may deviate from past market definitions if its market investigation indicates that the market has changed considerably since the preceding decision.
What fees are payable to the authority for filing a notification?
The notifying parties are obliged to pay filing fees in both phases of the notification process. These (fixed) filing fees currently amount to €17,450 for a decision in Phase I and to €34,900 for a decision in Phase II.
What form should the notification take? What content is required?
Applications must be submitted by using the standard forms for notifications in Phase I and for permit applications in Phase II. These forms can be found on the ACM's website.
In Phase I, the undertakings concerned are required to provide the following information in their notification form:
- general (corporate) information about the undertakings involved (contact details, legal structure, turnover information and a brief description of their (group) activities);
- information about the nature of the concentration (ie, whether the concentration is a merger, the acquisition of sole or joint control of the creation of a full function joint venture) and a description of the transaction structure;
- description of the market(s) on which they are active, which should cover the following elements:
- affected markets and relevant market definitions;
- market shares of the undertakings on these markets;
- contact details of important competitors and customers;
- information on ancillary restraints and a declaration regarding whether the parties request the ACM to give its opinion as to whether these restraints are allowed; and
- whether or not the concentration will be (or has been) notified in other EU jurisdictions as well.
The following information should be attached to the notification form (to the extent applicable):
- the most recent annual reports of the undertakings concerned;
- all transaction documents relating to the concentration;
- powers of attorney of representatives; and
- market reports.
Where the ACM finds that the proposed transaction requires an in-depth investigation in Phase II, the parties must submit a separate application for a permit in order to initiate that phase. The companies will in that case be required to give more detailed information about their businesses, markets (including market data over the previous two years and estimates of competitors’ market shares) and possible impediments to competition.
The parties are required to provide correct and complete information in the context of a notification. A failure to do so can lead to substantial fines of up to €900,000 or (should this be higher) 1% of the annual worldwide (group) turnover of the purchaser(s) (Article 73(1) of the Competition Act). This maximum is increased by 100% in cases of recidivism within five years. Such fines may also be imposed on natural persons.
Is there a pre-notification process before formal notification, and if so, what does this involve?
As indicated, pre-notification talks are not customary in the Netherlands in seemingly straightforward cases. However, where a concentration could lead to competition concerns, pre-notification discussions with the ACM could be arranged in order to streamline the notification process and speed up clearance.
During these pre-notification discussions, the following subjects could be discussed:
- contents of the notification form;
- jurisdictional issues (although if only jurisdictional questions are at stake, these are usually addressed through a request for an informal opinion); and/or
- possible outcomes of the ACM’s competitive assessment (subject to the outcome of the market investigation following notification).
What provisions apply regarding publicity and confidentiality?
Pre-notification discussions with the ACM are entirely confidential and the ACM does not publish information regarding these discussions.
However, the receipt of a notification and the receipt of a request for a permit is announced by the ACM in the State Journal and on its website. In this announcement, interested parties are invited to submit submissions within seven days of the publication of the announcement. These announcements provide only a brief description of the companies involved, their names and their activities, the date of the notification and the type of concentration that was notified to the ACM.
In addition, the ACM publishes public versions of all its merger decisions. Commercially sensitive information (in particular, business secrets) is omitted from these public versions and prior to publication the parties are able to indicate which information they consider commercially sensitive. Civil injunction proceedings against publication may be initiated against the Dutch state where the ACM intends to disclose information in its public version of its merger decision that the parties perceive as commercially sensitive. However, in unproblematic Phase I decisions, the ACM usually issues one page short-form decisions that are highly unlikely to contain any commercially sensitive or otherwise confidential information. The ACM adopts such short-form decisions in the vast majority of cases that are unconditionally cleared in Phase I. The ACM also publishes public versions of its informal opinions in anonymised form.
Lastly, the ACM usually conducts a market investigation in which it contacts and requests oral or written information from, for example, customers, competitors and suppliers. In these contacts, the ACM shall not disclose business secrets of the involved companies.
Pursuant to the Public Access to Government Information Act, third parties may request information from the ACM, including information as to merger control proceedings. However, also in such cases the ACM is not allowed to disclose business sensitive information.
Are there any penalties for failing to notify a merger?
A failure to notify a concentration that is notifiable under Chapter 5 of the Competition Act may have the following consequences:
- the ACM may impose a fine of up to €900,000 or 10% of the annual (group) turnover of the purchaser(s) (or parents in the case of a greenfield joint venture) (Article 74(1) of the Competition Act)) – whichever is the greatest;
- the transaction is considered null and void (Article 3:40(2) of the Civil Code);
- the ACM may order the parties to cease and/or dissolve the concentration if it concludes (after regular, retro-active notification proceedings) that the concentration leads to a significant lessening of competition; and/or
- personal fines of up to €900,000 may be imposed on individuals who have led the infringement.
In practice, the ACM’s policy is to impose fines in all cases in which a concentration was not notified prior to closing. This also includes cases in which the parties themselves informed the ACM of their omission.
Click here to view the full article.