Year in review: a general introduction to merger control issues 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. Moreover, the European Commission's decision practice and the Commission's 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 is more than €150 million in the calendar year preceding the concentration, and at least two of the undertakings concerned each achieved at least a €30 million turnover in the Netherlands. 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 large fines.

Year in review

i Workload

The ACM received 89 notifications and reached 90 decisions in Phase I in 2020, which is significantly less than the workload in 2019 (134 notifications and 127 decisions in Phase I decisions).⁵ The majority of notifications resulted in one-page short decisions. Only nine Phase I decisions were substantiated (with reasons, the same amount as in 2019). In addition, the ACM received four requests for decisions in Phase II and issued six decisions in Phase II, compared with one of each in 2019.

The workload of the ACM reflects that during the first lockdown many transactions involving small and medium-sized enterprises and private equity were put on hold, whereas larger strategic deals continued. Moreover, it shows that the ACM is increasingly investigating cases in Phase II.

The ACM issued no prohibition decisions, but in five cases remedies were required.⁶ The ACM granted one exemption from the standstill period in the healthcare sector.⁷ The ACM did not impose any fines for a failure to notify a concentration in 2020.

ii Infringements of formal obligations and legal proceedings

One of the few judgments regarding merger control in 2020 concerned the ruling of the Trade and Industry Appeals Tribunal (CBb) of 10 November.⁸ The case can be traced back to 2016 when the ACM approved the acquisition of the Staatsloterij and the Lotto. The ACM held that a strict scrutiny of the anticompetitive effects of a concentration is only necessary in markets with free competition and homogenous products. This was not the situation in the case at hand. This is because the law on gambling imposes that only one party can be licensed per type of game of chance.

In the appeal before the Rotterdam District Court, competitors argued, inter alia, that the ACM did not sufficiently take into account the acquisition's possible anticompetitive effects on the (future) market of online gambling. The Court rejected this appeal, stating that the parties faced international competitors with important digital platforms.

In appeal, the CBb confirmed the verdict of the Rotterdam District Court. The ACM had used a regression analysis to determine how strongly the sales of different types of games of chance of one party would react to that party's own price and the price of alternative games of chance. The CBb held that the regression analysis showed that the Staatsloterij and the Lotto formed limited competitive constraints on each other, and that the merger would not lead to a significant decrease of competition.

Another case concerns the appeals against the ministerial approval of PostNL's acquisition of its only competitor, Sandd. In September 2019, the ACM had blocked the transaction based on competition concerns in the markets for business and individual mail delivery. Three weeks later, the prohibition by the ACM was overruled by the Secretary of State for Economic Affairs and Climate based on public interest grounds.⁹ Subsequently, by a judgment of 11 June 2020, the Rotterdam District Court annulled the Secretary of State's decision and referred it back to the Secretary of State.¹⁰ The Court found that the third parties had not been granted enough time to present their views and that the decision of the Secretary of State was therefore not sufficiently substantiated. The Court concluded that the Secretary of State should have assessed the competitive effects on the adjacent market of package delivery. Moreover, it ruled that the Secretary of State should have provided better reasoning for the overriding public interest, including how the decision was essential to guarantee PostNL's universal postal service obligation and how it would contribute to the protection of employment.

iii Phase I decisions

The ACM approved the acquisition by Audax Group BV, a distributor and retailer of magazines, international newspapers and books, of Bruna, a competitor in the retail sector.¹¹ The ACM concluded that the horizontal overlap would remain below 25 per cent. The ACM also assessed vertical foreclosure effects on the market for the distribution of magazines, as only two players were active on this market, including Audax. Based on Audax's limited market share of 30 per cent, the ACM ruled out vertical foreclosure.

The ACM approved the acquisition by Digital Realty Trust, a US data centre colocation services provider, of its Dutch counterpart, InterXion.¹² Colocation services providers supply data centre space and equipment for third parties. The ACM concluded that the acquisition would not significantly reduce competition for the supply of colocation services by data centres in the metropolitan region of Amsterdam as the combined market share would remain below 30 per cent. The ACM also found that the foreclosure of downstream competitors on the market for the supply of internet hubs was improbable because of this limited market share.

The ACM approved the acquisition of Sanoma Media (free online news and magazines) by DPG Media (several national newspapers, online news and radio).¹³ Regarding the segment of free online news, the ACM concluded that there were sufficient alternative providers such as NOS, RTL and websites of national newspapers. Regarding the sale of advertising space, the ACM found that this market is characterised by exponential growth and powerful competitors such as Facebook and Google. Also, the ACM found that both parties use freelance journalists to a very limited extent and consequently the transaction only has a small effect on the purchase of (freelance) journalistic services.

The ACM approved a joint venture (JV) between the national rail incumbent and the public transport undertakings of Amsterdam, Rotterdam and The Hague.¹⁴ The JV would create a wholesale 'mobility as a service' (MaaS) platform, connecting mobility providers and MaaS providers by providing technical interconnection services to MaaS providers and mobility providers. The ACM found four threats to competition but accepted behavioural remedies.

Threat to competition	Behavioural remedy accepted by the ACM
Bundling access to participating transport services with platform services	Unbundled access to the transport services
Discriminatory pricing towards competing MaaS providers	No exclusive purchasing
Discriminatory pricing towards competing mobility providers	Fair, reasonable and non-discriminatory conditions
Access to commercially sensitive information, giving the participants an advantage over their competitors	Firewall for sensitive information

The ACM conditionally cleared a JV between Pon Netherlands BV and Dutch rail incumbent NS.¹⁵ The JV would combine their respective MaaS platforms to link rail services with Pon's bikes, e-bikes and cars. To resolve vertical foreclosure risks, the ACM imposed behavioural remedies, including the commitment by NS to provide equal access to its services, notably through access to its application programming interfaces.

The acquisition of regional publisher of daily newspapers NDC by its national competitor Mediahuis was not deemed problematic in the markets for readers or advertisers.¹⁶ However, NDC's network for the delivery of morning newspapers in the north of the Netherlands is used by all newspaper publishers, including Mediahuis' biggest competitor, DPG. As a remedy, Mediahuis committed to grant access to publishers without their own distribution network and to maintain the level of quality and prices.

Hutchison Ports Netherlands – owner of the ECT container terminal – was allowed to acquire the container terminal APMT-R from Maersk in the port of Rotterdam.¹⁷ The ACM found that the increase in market share was limited, as much of its volume was captive from Maersk shipping, and that shippers have strong bargaining positions. No risk was found in the market for transit traffic in the Hamburg–Le Havre range, nor in the market for hinterland traffic in the (at the minimum) Antwerp–Rotterdam range.

The concentration between educational institutions LOI and NCOI is discussed in Section II.iv.¹⁸

iv Phase II cases

Corendon and Sunweb, two travel agencies, would have a significant combined market share in the national market for sun holidays to long-haul and medium-haul destinations.¹⁹ Equally large competitor TUI, as well as many smaller parties, would maintain competitive pressure. The ACM ruled out coordination between the new entity and TUI as this would be difficult due to the substitutability of the destinations and by the influence of geopolitical events on the travel movements of consumers. In a twist, Sunweb pulled out of the deal as the coronavirus crisis had changed market dynamics. Corendon demanded execution of the transaction, but this was denied by the court in preliminary proceedings.

The ACM granted a licence for the takeover of LOI by NCOI.²⁰ The parties are both private educational institutions that offer (mainly part-time) courses at accredited higher professional education level and accredited secondary professional education level, as well as various non-accredited courses. Extensive market research in Phase II pointed to separate markets for part-time and full-time accredited education. The activities of the parties overlapped in the part-time segment only, where sufficient competition would remain, notably due to competition by public institutions. In the market of non-accredited courses, a sufficient number of other providers with a broad range of options were active alongside niche players with specialised offerings.

The ACM approved a full function JV to which building companies BAM and Heijmans transferred 10 asphalt plants.²¹ The ACM investigated whether the JV could lead to the foreclosure of road construction companies from the supply of asphalt or to higher asphalt prices. The ACM concluded that sufficient alternatives existed, even in the local markets. Important factors preventing foreclosure were ease of switching, low transport costs of asphalt and lasting overcapacity in the asphalt market to the effect that BAM and Heijmans will remain dependent on supplies to third parties.

The ACM granted a licence for the merger of three elderly care homes, including de Schakelring.²² The market research showed that patients had a strong preference for a provider in their immediate vicinity, to the effect that the parties were not usually alternatives for each other. In addition, larger competitors remained present. In the care procurement markets the parties obtained relatively low market shares of 20 per cent to 30 per cent at the most, in the narrowest market. Finally, none of the health insurers expected negative consequences of the merger.

The ACM approved the acquisition by Stichting Omring of Stichting Vrijwaard with conditions.²³ The parties are both elderly care institutions with a diverse range of care services, including somatic and psychogeriatric nursing home care. The ACM concluded that the acquisition would lead to a significant impediment of competition in the markets for somatic and psychogeriatric nursing home care, due to very high market shares of up to 90 per cent in the local markets. Consequently, Omring had to sell some of its locations to a third party.

The ACM approved the acquisition of parts of Careyn by Thebe with conditions.²⁴ The ACM found that, as a result of the proposed acquisition, competition would be significantly impeded in the market for district nursing and home care in a number of communities in the south of the Netherlands. The ACM accepted the parties' remedy proposals to divest certain local teams and clients.

v Reports and position papers

In 2019, the ACM, for the first time, outlined its ideas on an ex ante enforcement instrument for addressing possible competition problems in relation to digital platforms with gatekeeper positions.²⁵ In 2020, the ACM affirmed its view on the desirability of an ex ante enforcement instrument.

The ACM supported the European Commission's initiative for a new competition tool (NCT) in its contribution to the consultation in the context of the Digital Services Act Package. According to the ACM, the NCT 'should be complementary to the existing competition instruments (article 101, 102 TFEU and the Merger Regulation) and be able to address structural competition problems that cannot be tackled effectively by the existing competition instruments'.²⁶ In its contribution, the ACM, inter alia, elaborates on: (1) 'the potential structural competition problems which may not be addressed effectively or sufficiently efficient with the existing competition instruments'; (2) the potential scope of application of the NCT; (3) the desirable threshold for intervention; and (4) the proportionality of possible remedies.²⁷ The ACM also emphasised the need for an additional ex ante enforcement instrument in its report of 16 November 2020 on big tech firms in the payment industry.²⁸