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Merger review

Chapter 5 of the Competition Act provides the rules of merger control in the Netherlands. Similar to other parts of competition law, the Dutch merger control rules are similar (and complementary) to those of EU merger control. The concepts of a merger (or 'concentration') and 'control' are equal to those at the EU level. The ACM also conducts its substantive analysis of mergers in line with the Commission's guidelines. The Dutch and EU merger control systems are also very similar from a procedural perspective, although not identical. A procedural difference is that, unlike a notification at the EU level, Dutch competition rules do not contain a formal requirement of a pre-notification phase. However, in practice, pre-notification talks are often held in cases that are likely to receive more scrutiny. Another feature of the Dutch system is that the waiting period is suspended from the moment that the ACM sends formal questions to the notifying party until the moment that those questions have been answered.

The Dutch thresholds are met in the case of a concentration where the combined turnover of the undertakings involved exceeded €150 million in the previous calendar year. In addition, at least two of the undertakings involved must each achieve a turnover of at least €30 million in the Netherlands. Mergers that meet these thresholds require mandatory prior notification to the ACM. In line with the 'one-stop shop' principle of EU merger control, no notification needs to take place in the Netherlands once a merger has an EU dimension and thus has to be notified with the Commission.

The rules on merger control provide for a two-phase investigation procedure, starting upon notification. The ACM clears most cases in the first phase by deciding that no licence is required for the notified transaction. Where the ACM considers that a more in-depth investigation is necessary, it takes a Phase I decision holding that a licence is required. Phase II starts as of the moment the merging parties file a separate application asking for a licence. It seems that, in practice, the ACM uses a somewhat lower threshold to take a case into Phase II, opting for a more in-depth analysis as soon as it cannot exclude competition issues arising from the merger, rather than the 'serious concerns' test of the Commission.

The basic test under Dutch merger control is the same as the one under EU merger control (i.e., whether the concentration will significantly impede effective competition). Similar to the analysis of the Commission, the ACM examines not only the combined market share, but also factors such as the number of competitors and their respective market shares, the existence of countervailing power from suppliers or customers, entry barriers, etc.

Dutch law prohibits the implementation of the anticipated merger concentration before a notification is made and the waiting period has lapsed or, where a licence is required, before an application is submitted and the ACM has granted the licence.

An exception to the obligation to respect the waiting period is the exemption of Article 40 of the Competition Act. This exemption will only be granted in cases of overriding reasons and on the request of the party that has made the notification. Overriding reasons are deemed to exist if applying the waiting period would cause irreparable damage to the concentration. Of course, such an exemption does not prejudice the outcome of the ACM's substantive analysis. The risk is upon the parties if the ACM does, after its examination, find that the – by now already implemented concentration – represents a significant impediment to effective competition. The ACM has recently granted several exemption requests, especially in the field of retail where many bankruptcies have taken place. In those cases, the ACM seems to see ample reason to grant an exemption to ensure business continuity of retail stores.

Both Phase I and Phase II decisions can be made subject to conditions or restrictions. The purpose of such conditions or restrictions is to remedy any adverse effects on competition that result from the concentration. Remedies can either be suggested by the parties or by the ACM on its own initiative. There are written guidelines indicating the types of commitments that the ACM deems acceptable and the procedure to follow.

In September 2017, the ACM granted a licence for a merger between the two Amsterdam-based academic hospitals, Academic Medical Centre and VU University Medical Centre. The decision came after heavy scrutiny by, inter alia, the Dutch Healthcare Authority and parliament, which heralded tighter reviews by the ACM of healthcare mergers. In late 2017, the proposed merger between the hospitals Stichting Catharina Ziekenhuis and Stichting St Anna Zorggroep was abandoned by the merging parties, after the ACM expressed concerns in its Phase I decision. The parties considered that the chances are too high that the ACM would disapprove of the merger in Phase II now that it has started to monitor hospital concentrations more stringently.

As in 2017, the ACM worked on several healthcare mergers in 2018. In December 2018, the ACM granted a licence for a joint venture of two independent treatment centres, Bergman Clinics and NL Healthcare Clinics. Both parties provide certain forms of specialised medical care, such as dermatology, orthopaedics and ophthalmology. In its Phase I decision, the ACM observed that Bergman Clinics and NL Healthcare Clinics are the largest independent treatment centres in the Netherlands. They both offer approximately half of the total care offered by independent treatment centres in the Netherlands in the fields of orthopaedics and ophthalmology. Consequently, the ACM found that the proposed joint venture may deteriorate the bargaining position of healthcare insurers vis-à-vis that of the merging parties. This could allow the merging parties to charge higher prices after the concentration, thereby raising the possibility that the insured could face higher premiums. Following its in-depth investigation in Phase II, the ACM concluded that the proposed joint venture will not have any negative effect on choice for consumers. Based on its research into patient flows, the ACM concluded that the parties' activities overlap in a few regions only. In those regions where there is overlap, patients will continue to have sufficient alternatives to choose from, such as neighbouring hospitals. Moreover, the ACM considered that the parties are not each other's closest competitors, following an analysis of patient diversion ratios. Consequently, the ACM does not foresee any significant impediment of competition on the relevant market or any deterioration in the bargaining position of healthcare insurers.

In December 2018, the ACM conditionally approved the proposed merger between two pharmaceutical companies, Apothex Nederland BV and Aurobindo Pharma BV. The ACM assessed the potential consequences of the proposed merger in terms of sales of pharmaceutical products, pipeline products, active pharmaceutical substances, production on behalf of third parties and the licensing of files. In the context of pharmaceutical products, the ACM assessed the transaction per individual product, taking the molecular level as the starting point. Where appropriate, the ACM also considered the impact on a possible market at higher levels of aggregation based on Anatomical Therapeutic Classification (ATC) of the medicinal products. Furthermore, the ACM assumes separate markets for the Rx and OTC segments, and within the OTC segment for the retail and pharmacy channels. The scope of the geographic market was defined as national. Following its investigation, the ACM expressed concerns regarding the proposed merger's effects on the sale of dizepam enemas. The ACM considered that the merging parties are currently the only suppliers of dizepam enemas in the Netherlands. Therefore, the merging parties offered to divest Apotex' diazepam enemas business in the Netherlands to a third party. The ACM accepted this remedy and conditionally approved the merger.