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Trends and climate

How would you describe the current merger control climate, including any trends in particular industry sectors?

In the past few years, there has been strong political pressure on the Dutch competition authority, the Authority for Consumers and Markets (the ACM), to adopt a stricter control policy for mergers of healthcare companies. Many politicians believe that the ACM had been too permissive in allowing concentrations between healthcare providers. These concerns have led to the ACM now scrutinising very closely all mergers in the healthcare sector, including cases that do not raise serious issues at first sight. This means that notifications of concentrations in the healthcare sector are often time-consuming as the ACM will conduct a thorough market investigation and typically ask several rounds of questions before making a decision.

In December 2017 the ACM produced a research paper that indicated that many hospitals that had merged in the past few years had raised their prices. The ACM therefore announced that it would be stricter on future mergers in the hospital sector.

This critical approach towards healthcare mergers is further evidenced by the fact that the only two decisions in Phase II merger applications that the ACM adopted in 2017 related to the healthcare sector (Phase I consists of notifying the ACM of the intended merger, and the Phase II merger application follows if the ACM has reasons to believe that the notified concentration could lead to a significant lessening of competition). The ACM eventually cleared both mergers, although one only after the notifying parties proposed remedies to address the ACM’s concerns:

  • In Parnassia/Antes, the ACM approved the proposed merger after the parties had committed to divest capacity on the market for ambulant specialised mental healthcare and forensic mental healthcare to a competitor (Decision of June 12 2017, Case 15.1259.24).
  • The merger between Amsterdam’s two teaching hospitals AMC and VUmc was, however, cleared unconditionally in Phase II. Not only did the ACM conclude in its Phase II investigation that – on the basis of more reliable market data that had only become available in Phase II – the parties’ combined market share was considerably lower than assumed in Phase I (30%-40 % instead of 50%-70 %), but also that regular, non-teaching hospitals could be considered equal competitors for most types of treatments that both parties offered. With regard to specialised treatments that regular hospitals do not offer, the ACM concluded that the parties’ portfolios of treatments hardly showed any overlap. The ACM rejected concerns from a healthcare insurer that the bundling of these portfolios would lead to substantial conglomerate effects, as well as concerns from the Dutch Healthcare Authority that the merged entity would be capable of raising prices (Decision of December 14 2016, Case 16.0685.22).

Are there are any proposals to reform or amend the existing merger control regime?

Not applicable.

Legislation, triggers and thresholds

What legislation applies to the control of mergers?

The relevant legislation is laid down in Chapter 5 of the Competition Act. Chapter 5 is modelled in many respects on the EU Merger Regulation (Nr. 139/2004) (the Merger Regulation). Consequently, the ACM tends to follow the European Commission’s consolidated notice under the Merger Regulation (OJ C95/1) (the Consolidated Jurisdictional Notice) in most matters regarding jurisdiction. In addition, the Dutch General Act on Administrative Law lays down various rules regarding procedure.

What is the relevant authority?

The ACM is the authority that enforces Chapter 5 of the Competition Act. The Dutch merger control system consists of two phases of investigation. A notification phase (Phase I) and a subsequent phase in which an application for a permit must be submitted (Phase II). In Phase I, the ACM decides whether it has reasons to believe that the notified concentration could lead to a significant lessening of competition on the Dutch market or a part thereof, in particular because it would lead to the creation or strengthening of a dominant position (Article 37(2) of the Competition Act). Where that is the case, the ACM may decide that a permit is required for the concentration in question (Article 37(1)). If the parties choose to apply for a permit, the ACM starts its more in-depth Phase II investigation. The ACM shall refuse a permit if research establishes that the proposed concentration indeed leads to a significant lessening of competition (Article 41(2) of the Competition Act).

If the ACM rejects an application for a permit in Phase II, the parties can request the Minister of Economic Affairs to overrule the ACM and to grant the permit if, in the Minister's opinion, the concentration is necessary for important reasons of public interest that outweigh the expected impediment to competition (Article 47(1) of the Competition Act).

The Dutch Healthcare Authority is the regulator for the healthcare sector. The Dutch Healthcare Authority must approve a concentration before the parties can notify the concentration to the ACM where at least one undertaking employs at least 50 persons who provide care. The Dutch Healthcare Authority applies a procedural test in order to assess, among other things, whether the decision to merge was the outcome of a sufficiently thorough decision-making process, and whether all relevant stakeholders (patients, employees, healthcare insurers) have been properly involved in that decision-making process. We will not address this procedure further as it does not relate to matters of competition.

Under what circumstances is a transaction caught by the legislation?

The Competition Act applies to ‘concentrations’, which are defined as follows in Article 27:

  • a merger of two or more previously independent undertakings;
  • in case one or more natural or legal persons acquire(s) direct or indirect control of the whole or of parts of one or more other undertaking(s); and
  • the establishment of a joint venture that performs all the functions of an autonomous economic entity on a lasting basis.

‘Control’ is defined as “the ability to exercise decisive influence on the activities of an undertaking, either on the basis of factual or legal circumstances” and is in practice (but not as a matter of law) identical to the concept of control under the Merger Regulation and the Consolidated Jurisdictional Notice. The ability to exercise decisive influence refers to the ability to influence important strategic decisions such as decisions as to the appointment and dismissal of senior management, the annual budget, the business plan, or major investments.

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

Pursuant to Article 29(1) of the Competition Act, a concentration requires prior approval of the ACM if in the preceding calendar year:

  • the aggregate worldwide (group) turnover of all undertakings concerned was €150 million or more; and
  • the individual (group) turnover in the Netherlands of each of at least two of the undertakings concerned was €30 million or more.

‘Turnover’ comprises the (group) income from the supply of goods and services from the business of the legal entity after the deduction of rebates, tax and intra-group turnover. As under the Merger Regulation, the seller’s turnover is not taken into account. There are no legal provisions on how to allocate turnover to the Netherlands. The ACM calculates and allocates (group) turnover in accordance with the Merger Regulation and the Consolidated Jurisdictional Notice.

The same thresholds apply for credit and financial institutions and insurance companies. However, their turnover is calculated in a specific manner. Where financial institutions are concerned, Article 31(1) of the Competition Act lays down a specific regime for calculation of turnover that is almost identical to that of Article 5(3)(a) of the Merger Regulation. With respect to pension funds within the meaning of the Dutch Financial Supervision and Pension Funds Act, the merger control regime applies if:

  • the companies involved generated €500 million in gross written premiums; and
  • at least two undertakings received €100 million from the aforementioned amount from Dutch residents (Article 31(2) of the Competition Act).

Lower turnover thresholds apply for undertakings active in the healthcare sector. The ACM has jurisdiction to review concentrations if in the preceding calendar year:

  • at least two of the undertakings concerned achieved a turnover of €5.5 million through the provision of certain healthcare activities;
  • the aggregate worldwide turnover of all undertakings concerned was €55 million or more; and
  • the individual turnover in the Netherlands of each of at least two of undertakings concerned was €10 million or more.

As mentioned above, a concentration in the healthcare sector may also be subject to prior clearance by the Dutch Healthcare Authority.

Concentrations that fall below these thresholds do not require approval by the ACM. However, the Minister of Economic Affairs may decide to lower the thresholds temporarily for certain categories of undertakings by decree (Article 29(3) of the Competition Act). In addition, there is no requirement to notify concentrations that require the approval by the European Commission under the Merger Regulation.

Is it possible to seek informal guidance from the authority on a possible merger from either a jurisdictional or a substantive perspective?

Pursuant to a guidance document from the ACM, the parties to a proposed concentration are invited to request an informal written opinion or a pre-notification meeting.

A request for an informal written opinion may be considered in case the parties face questions regarding jurisdictional matters. The ACM is in general readily prepared to issue such an opinion where it agrees that:

  • there is an uncertainty regarding the ACM’s jurisdiction; but
  • such uncertainty is not so complicated that it requires a formal decision from the ACM.

The typical timeframe to obtain such informal guidance from the ACM is two weeks, provided that the ACM finds that the request contains sufficient information for it to reach a conclusion.

With regard to matters of substance, pre-notification discussions can be arranged with the ACM in order to streamline the notification process. It is however uncommon to organise pre-notification discussions in relatively uncomplicated cases. Unlike various other authorities, the ACM strongly prefers that such cases be officially notified right away. However, the ACM welcomes case parties to discuss more complex cases in pre-notification discussions. These discussions are usually conducted on the basis of a draft notification form.

Are foreign-to-foreign mergers caught by the regime? Is a ‘local impact’ test applicable under the legislation?

Where the turnover thresholds as laid down in the Competition Act are met, foreign-to-foreign concentrations must be notified, even if the companies concerned do not own assets and/or subsidiaries in the Netherlands. There is no ‘local impact’ test. In particular, joint ventures must also be notified in case the parent companies’ turnover meets the notification thresholds, even if the joint venture has no activities in the Dutch market (and it is not foreseen that it will develop such activities). However, the substantive test applied by the ACM relates only to the effects on the Dutch market or a part thereof.

What types of joint venture are caught by the legislation?

Only the creation of a full-function joint venture that performs its activities on a lasting basis is caught by the merger control provisions of the Competition Act. In practice, the concept of full-function joint ventures is the same as under the Merger Regulation and the Consolidated Jurisdictional Notice. This means that a joint venture will be full-function if:

  • it disposes of sufficient resources to operate independently on the market;
  • its activities go beyond a specific function for its parents;
  • it is not fully or largely dependent upon its parent companies for its input and sales; and
  • it operates on a lasting basis.

Non full-function joint ventures are not caught by Dutch merger control, but must be assessed under the cartel prohibition of Article 6 of the Competition Act.

Notification

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.

Procedure and test

What procedures are followed by the authority?  What is the timetable for the merger investigation?

Following receipt of the notification, the ACM is obliged to take a Phase I decision declaring whether or not the concentration requires a permit within four weeks (Article 37(1) of the Competition Act). Most unproblematic cases (eg, if there is no overlap in activities between the companies concerned or the combined market shares are low) are dealt with within these four weeks in a short-form decision. More complex cases may however take much longer. The parties are not allowed to implement the transaction during the waiting period and in the absence of a Phase I clearance decision (except where the parties can benefit from one of the legal exceptions).

The waiting period of four weeks is suspended if:

  • the notification is incomplete and the ACM requests further information within five working days of receipt of the notification; the decision-making period of four weeks will then commence anew once the notification has been supplemented (Article 38(1) of the Competition Act);
  • the ACM formally requests further information from the parties; in such cases, the four-week waiting period is automatically suspended until all questions have been fully answered (Article 38 (2) of the  Competition Act); and/or
  • the parties themselves request a suspension of the waiting period (eg, to have sufficient time for negotiations regarding remedies; Article 38(3) of the Competition Act); this can be done only once.

If the ACM concludes during its Phase I investigation that it has reasons to assume that the concentration may lead to a significant lessening of competition in (parts of) the Netherlands, the ACM will issue a decision in which it determines that the transaction requires a permit. In such cases, the ACM will examine the transaction more thoroughly in Phase II. The parties must submit a separate request for a permit in order to initiate Phase II. Subsequently, the ACM has 13 weeks to decide whether or not to grant a permit (Article 44(1) of the Competition Act). The prohibition to implement the transaction prior to the ACM’s clearance continues to apply. The ACM may suspend this waiting period by requesting additional information from the parties. Unlike in Phase I, such a suspension is not automatic and the ACM must give the parties a deadline by which to comply with its information request (Article 4:5(1)(c) of the General Act on Administrative Law).

In its Phase II investigation, the ACM usually performs a more in-depth economic analysis and a broader market investigation. Where the ACM’s concerns are such that it contemplates to prohibit the concentration, the ACM will normally issue a statement of objections. The parties may respond to this document in writing (in addition, the ACM may also organise an oral hearing), and may propose remedies in order to address the ACM’s concerns.

What obligations are imposed on the parties during the process?

As outlined above, and save for the exceptions mentioned there, the most important obligation is that the parties are prohibited to implement (parts of) the transaction prior to the ACM’s clearance. In addition, the parties are under an obligation to provide the ACM with correct and complete information. A violation of the aforementioned obligations could result in the imposition of fines.

What role can third parties play in the process?

Third parties that qualify as interested parties have the right to submit observations to the ACM regarding the proposed transaction. The ACM may also contact third parties (eg, customers, competitors, suppliers and experts) during its market investigation.

What is the substantive test applied by the authority?

In Phase I, Article 34 of the Competition Act provides that the ACM may determine that a permit is required for a concentration if it has reasons to assume that the concentration could appreciably lessen effective competition on the Dutch market or on a part thereof, in particular as a result of the creation or strengthening of a dominant position. The ACM will issue a clearance decision if no such issue arises.

In Phase II, Article 41 of the Competition Act provides that a permit shall be refused if, as a result of the concentration, effective competition on the Dutch market or a part thereof would be appreciably lessened, in particular as a result of the creation or strengthening of a dominant position. If the ACM will issue a permit if it concludes that this is not the case.

Does the legislation allow carve-out agreements in order to avoid delaying the global closing?

The Competition Act does not explicitly provide for the possibility to enter into such carve-out agreements and, to date, there is no sufficiently clear case law regarding the legality of carve-outs under Dutch law. Parties contemplating to enter into such agreements could consider seeking informal guidance from the ACM.

Is a special substantive test applied for joint ventures?

No special substantive test applies in relation to the creation of a full function joint venture. Also in relation to joint ventures, the ACM will examine whether the concentration will significantly lessen effective competition on (a part of) the Dutch market, in particular as a result of the creation or strengthening of a dominant position. However, like the European Commission, the ACM will in its analysis also take into account whether the concentration may lead to a coordination of market conduct of the parent companies involved (spill-over).

Remedies

What are the potential outcomes of the merger investigation? Please include reference to potential remedies, conditions and undertakings.

In Phase I the ACM assesses whether it has reasons to assume that the concentration could lead to a significant lessening of competition in the Dutch market or a part thereof. If the ACM has no reasons to assume that this may be the case, it will issue a decision declaring that the concentration does not require a permit. Subsequently, the parties are allowed to implement the transaction.

If the ACM has reasons to assume that the concentration could lead to a significant lessening of competition on the Dutch market or a part thereof, the ACM will issue a decision declaring that a permit is required for the concentration. In that case, the parties are not (yet) allowed to close the transaction. The ACM may attach conditions and obligations to a decision declaring that no permit is required.

In Phase II cases, the ACM will grant a permit if it concludes that the concentration does not lead to a significant lessening of competition on the Dutch market or a part thereof. Conversely, the ACM will refuse a permit in case the concentration leads to a significant lessening of competition on the Dutch market or a part thereof. In such cases, the concentration is prohibited. The ACM may attach conditions and obligations to a permit.

It is possible for the parties to offer remedies in Phase I and in Phase II. In 2007 the ACM issued Remedies Guidelines that are closely modelled on the European Commission’s Notice on Remedies (OJ 2008/C 267/1). From these guidelines, it follows that the ACM expects that the case parties take the initiative and propose adequate remedies that address the ACM’s concerns. In addition, the ACM prefers structural remedies over behavioural remedies (although purely behavioural remedies may be accepted in exceptional cases). In case of divestitures, the parties have a choice between a fix-it-first remedy (meaning that the main concentration may be accomplished only after the divestiture) and a remedy by which the parties are given a timeframe within which an appointed trustee must sell the activities to be divested to a third party. In the latter case, the parties may already accomplish the main concentration on the condition that the activities to be divested are placed under the supervision of the trustee, whose appointment must be approved by the ACM. If the activities are not divested within the given timeframe, the trustee is to set up an auction in which the activities are to be sold at no minimum price. A divestiture package must consist of economically sound businesses that are able to function on a stand-alone basis. In all divestiture remedies, the ACM must also approve the buyer. The ACM will reject the buyer in case its identity raises prima facie competition concerns, or in case it believes that it does not have the resources to maintain the divestiture package as a serious competitor to the merged entity. In some cases, the ACM may demand a fix-it-first remedy. It will do so in particular if it has doubts as to whether a suitable buyer can be found.

The violation of conditions and obligations attached to a merger control decision of the ACM is punishable with a fine of up to €900,000 or 10 % of an undertaking’s (worldwide group) turnover – whichever is the greatest. These maximum amounts are doubled in cases of recidivism within five years.

Appeals

Is there a right of appeal?

The parties have a right of appeal to the decisions of the ACM in both Phases I and II. Appeals must be lodged with the Administrative Law Section of the District Court of Rotterdam, with the possibility of a further appeal for both the case parties and the ACM to the Trade and Industry Appeals Court in the Hague.

Do third parties have a right of appeal?

Third parties have the same right of appeal as the undertakings concerned if they qualify as ‘directly interested parties’.

What is the time limit for any appeal?

An appeal must be lodged formally within six weeks of the decision of the ACM (Article 6:7 of the General Act on Administrative Law). However, it is possible to submit the reasoning for the appeal at a later stage. The court will set a deadline by which to submit the grounds for the appeal (Article 6:6 of the General Act on Administrative Law) if the initial appeal request does not specify them.