Spotlight: the merger control regime in Netherlands

All questions

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. The European Commission's decision practice and its 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 exceeds €150 million in the calendar year preceding the concentration, and at least two of the undertakings concerned each achieved a turnover in the Netherlands of €30 million or more. 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 heavy fines.

Year in review

i Workload

The ACM received 169 notifications and reached an equal number of decisions (169) in Phase I in 2021. This is almost double the workload as compared to 2020 (89 notifications and 87 Phase I decisions).⁵ The majority of notifications resulted in short, one-page decisions. Only 17 Phase I decisions were substantiated with reasons (almost double the amount in 2020). In addition, in 2021 the ACM received eight requests for decisions in Phase II and issued five⁶ decisions (including two prohibitions)⁷ in Phase II, compared to four and six, respectively, in 2020.

The ACM's workload in 2021 reflects the economic stabilisation following the shock of the first covid-19 lockdown in 2020. A good portion of the transactions that were put on hold in 2020 were pushed through in 2021. Moreover, the workload of the ACM confirms the trend identified in 2020 of an increase of Phase II investigations. In seven Phase I cases, the ACM decided that a Phase II assessment was required,⁸ which is more than double the amount in 2020.

The ACM issued two prohibition decisions,⁹ and in two cases remedies were required.¹⁰ Contrary to 2020 and despite the continued covid-19 pandemic, the ACM did not grant any exemptions from the standstill period. Neither did it impose fines for failure to notify a concentration.

ii Infringements of formal obligations and legal proceedings

One of the few judgments regarding merger control in 2021 consists of the ruling of the Rotterdam District Court of 4 March 2021.¹¹ The case can be traced back to 2019¹² when the ACM approved (with remedies) the acquisition of Iddink by Sanoma. Iddink is a distributor of educational tools and exploits a digital platform and learning environment named Magister. Sanoma is a publisher of digital educational tools. The Rotterdam District Court, upon appeal by a competitor, annulled the decision because of flaws in the investigation and a failure to state reasons. More specifically, the Court ruled that the ACM should have investigated more closely the risk that bundling Magister with the teaching materials would have a negative effect on competition. After a new investigation, the ACM approved the concentration again in 2021 with an improved statement of reasons, including the remedies that were proposed in the earlier decision.¹³

Another case concerned the request for referral of 9 March 2021 from the French competition authority under Article 22 of the EC Merger Regulation,¹⁴ relating to the acquisition of Illumina by Grail. On 10 March 2021, the Commission invited all EU and European Free Trade Association Member States to support the referral. The Netherlands was among the Member States that did so. The referral was challenged by Illumina before The Hague District Court.¹⁵ According to Illumina and Grail, Article 22 of the EUMR should be interpreted in such a way that only national authorities that are competent to assess the concentration under their national laws should be allowed to submit a referral request to the Commission. The District Court, in summary proceedings, rejected the claim on the basis that Article 22 of the EUMR does not explicitly require national competence to review a concentration as a pre-condition for referral to the Commission.

iii Phase I decisions

The ACM conditionally approved the acquisition of Yarden by Dela.¹⁶ Dela is active in the life insurance industry as a provider of life insurance and funeral services. Yarden is active as a provider of funeral insurance and funeral services. The ACM's investigation identified problems in the local markets for both crematoria and funeral homes and deemed a further investigation in Phase II necessary. However, because of Yarden's critical financial situation, the parties proposed a structural remedy: the sale of two funeral homes and seven crematoria, which would solve all problems in local markets. The ACM deemed that the parties' insurance activities would not enable them to significantly steer their insurance customers towards their crematoria or funeral homes. Hence, the insurance activities would not undermine the effectiveness of the remedy.

The ACM approved the acquisition of PBG, a wholesaler of replacement tyres and wheels, by Global Automotive, a wholesaler of wheels and tyres.¹⁷ The ACM assessed both the horizontal and vertical effects of the concentration. Despite the relatively high combined market share in the market for supply to retailers, the ACM did not identify risks for competition because there remained sufficient competitors and the parties were not each other's closest competitors. Regarding the vertical analysis, the ACM considered that there was no significant relationship between the parties and that there was no post-merger risk of source or customer foreclosure.

The ACM decided that a licence was required for the takeover of Landal by competitor Roompot.¹⁸ The activities of the notifying parties overlapped in the Dutch market for holiday accommodation at holiday parks and potentially in the Dutch market for sales and marketing services for holiday parks. The ACM identified competition risks in both markets. Regarding the market for the provision of holiday accommodation at holiday parks, the ACM noted that the parties were each other's nearest competitors. The ACM doubted that booking platforms provide competitive pressure on the parties because of the large number of bookings made directly with holiday parks. Regarding the market for sale and marketing services for holiday parks, the ACM considered that the parties were each other's closest competitors.

The ACM decided that a Phase II investigation was required into the merger between Erasmus MC and IJsselland.¹⁹ Erasmus MC is an academic hospital in Rotterdam that provides (highly) complex care and basic care. IJsselland provides basic care and, to a lesser extent, complex care and is located just outside central Rotterdam. In view of the combined market share exceeding 40 per cent in a large number of patient group categories, the ACM took the view that post-merger a larger number of patient groups would have less options for independently operated hospitals in their area. In the purchasing market, the ACM noted that Erasmus MC already had a strong position in the region and that health insurers were of the view that it was already very difficult to not contract with Erasmus MC. According to the ACM, there was a risk that this could also apply to IJsselland post-merger, which would further reduce the negotiating position of health insurers and may affect the price, quality and innovation of care.²⁰

iv Phase II cases

The ACM prohibited the acquisition of Mauritskliniek by Bergman Clinics.²¹ Bergman Clinics and Mauritskliniek are independent treatment centres that provide planned specialist medical care. Bergman has more than 40 locations in the Netherlands; Mauritskliniek has five locations through the country, but there is no noticeable overlap regarding specific treatment for patients (downstream). The ACM investigated the market for independent treatment centres together with the development of Bergman's prices following an earlier merger with NL Healthcare Clinics. It considered that Bergman had by far the largest network of independent treatment centres and that other centres were significantly smaller, had no national coverage and were considerably less well known. In addition, the ACM noted that Bergman's prices had increased more over recent years than those of other independent treatment centres that offer comparable care. Finally, the ACM referred to the health insurers who had expressed concerns about the takeover. Healthcare insurers purchase care services from providers such as Bergman to service the patients that have healthcare insurance with them. The ACM concludes that the acquisition could result in too strong a position vis-à-vis the healthcare insurers, which would allow Bergman to impose higher prices, even in the virtual absence of downstream overlap.

The ACM issued a licence for the acquisition of Van Dam, a calf trader, by Van Drie, the world's largest calf slaughterhouse.²² Van Drie and Van Dam are active in several stages of the production chain for veal and young beef. Van Drie is fully vertically integrated, whereas Van Dam is only active in the purchase and trade of calves. As a result of the acquisition, Van Drie would gain a market share of approximately 55 to 65 per cent in the latter market. The ACM assumed a national market and focused in particular on buying power. Based on an ex post analysis of an earlier acquisition by Van Drie in 2010, it concluded that the price effects would be limited or non-existent. Competitors supported this view. If Van Drie lowered prices upstream, competitors would compensate by purchasing more Dutch calves. As a consequence, the ACM concluded that any price effect would be small or non-existent.

The ACM granted a licence for the acquisition of Primagaz by Benegas. Both companies are suppliers of propane gas in lightweight cylinders, with Benegas specialising in plastic and Primgaz in lightweight steel cylinders.²³ Based on a quantitative investigation, the ACM concluded that the supply of composite plastic cylinders and lightweight steel cylinders were hardly subject to competitive pressure from other types of gas cylinders (in both cases, the hypothetical monopolist could profitably increase its prices by 10 per cent), but if end users would switch, they would mainly switch to steel gas cylinders. In other words, the composite plastic gas cylinders of Benegas and the lightweight steel gas cylinders of Primagaz hardly compete with each other but are both subject to competitive pressure from steel gas cylinders. The ACM concluded that because of the disciplinary effect of the offer of other suppliers, there were no risks for competition.

The ACM granted a licence for the acquisition of three floriculture road transport companies by Royal FloraHolland (RFH).²⁴ The ACM focused on the vertical consequences of the concentration because of the degree of market power held by RFH on the market for auctioning, intermediary and transaction services for the floricultural products it offers. Notably, RFH leases logistical facilities to transporters at its auction premises. However, the ACM was of the opinion that ornamental plant transporters have various options for physical handling outside RFH's auctions, and that therefore a potential deterioration of the conditions under which RFH leases space and docks to transporters at auction premises would only have a minor effect on the overall market for floriculture transport services. Further, in view of the measures announced by RFH – even if voluntary and not strictly in the form of remedies – regarding tightened protection of commercial information, the ACM considered it unlikely that RFH's possession of competitively sensitive information from competing transporters would lead to an anticompetitive advantage for the three target transport companies.

The ACM prohibited the acquisition of Eurocept Homecare by Mediq.²⁵ Both parties provide ambulatory electronic infusion pumps that can be used to deliver care to patients at home. According to the ACM, the acquisition would result in a very strong position on the market for infusion pumps because the parties were each other's closest competitors in a market with few suppliers. According to the ACM, this would make Mediq an unavoidable contractual partner for healthcare insurers that have expressed concerns about the acquisition. The ACM concluded that the acquisition could lead to higher prices and lower quality of services.

v Reports and position papers

First, the ACM published a report following empirical research it conducted into the relationship between concentrations and quality, accessibility and affordability in the nursing home sector. The main outcome of the study is that there appears to be little connection in the nursing home sector between the degree of concentration of the supply of nursing home care and the relevant quality indicators, accessibility and affordability of care.²⁶

Second, the ACM joined a joint statement of the European Competition Network on the European Commission's proposal for the Digital Markets Act.²⁷ In its press release on the matter, the ACM iterated that it pays close attention to the developments in the digital economy.²⁸

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.²⁹

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).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:

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.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).

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.³²

ii Investigation phasesNotification 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. This 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, 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. The only time that this occurred was in 2019.

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.³³ There are no requirements for pre-notification.

Exemption waiting period

Concentrations 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. This 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 aspectsThird 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.³⁴

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.³⁵ 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,³⁶ 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 this;
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.³⁷

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,³⁸ 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 reviewMerger 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 Trade and Industry Appeals Tribunal (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 once 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.

Other strategic considerations

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 main development in 2021 was the continued increase of scrutiny of cases in Phase II and the fact that this is no longer primarily focused on the healthcare sector. On the one hand, this seems to be the result of a more critical attitude towards the benefits of concentrations in general. On the other hand, the ACM seems less willing to take substantive decisions without the more thorough research that can be performed in Phase II, as confirmed by the ACM's chair Martijn Snoep.³⁹

This development is positive. There was always a risk that an extended notification phase was of little benefit to the notifying parties in terms of limiting the scope of the follow-up investigation in Phase II. In other words, the risk of having both a protracted Phase I and a long Phase II was real. The new policy of limiting the duration of Phase I in the case of doubt regarding the outcome may in fact limit the total duration of cases. It nevertheless remains possible to avoid an investigation in Phase II in more complex cases by offering remedies as illustrated by, among others, Dela/Yarden, even if, in that particular case, this was potentially driven by the time pressure to conclude the transaction.

We also note that the ACM attaches less importance to market definitions, but will make an assessment of the effects on competition in light of all circumstances of a case. This can lead to outcomes that are materially correct, but in the extreme this attitude may significantly reduce predictability and the value of precedents.

Finally, in 2021, the European Commission announced its new policy of asking EU Member States' competition authorities to refer cases to it that it wants to hear, assuming competence even if the referring national competition authority does not have competence itself. The ACM has announced its support for this controversial policy, even if it has suggested that if would refer cases to the Commission under exceptional circumstances only.