On 13 May 2015, the Netherlands Authority for Consumers and Markets ("ACM") delivered an informal opinion on the intended merger of two hospitals: Academisch Medisch Centrum ("AMC") and VU medisch centrum ("VUmc") (hereinafter jointly referred to as the "Parties"). The Parties requested the ACM to render an informal opinion as to whether establishing a union of the executive and supervisory bodies ("personal union"), under a new legal entity qualifies as a concentration under Dutch competition law. In its opinion, the ACM confirmed that the envisaged transaction qualifies as a concentration.
By means of a full union of the executive and supervisory bodies of both institutions, the Parties intend to establish a permanent joint board of directors for the AMC and the VUmc. In its decision, the ACM points out that a merger like this may qualify as a concentration under Dutch competition law if i) it concerns a personal union with "full and permanent" character and ii) the "full and permanent" character is safeguarded.
According to the ACM, a personal union would be considered to be "full and permanent" if the bodies involved in the union are authorized to decide on the commercial strategy of the undertaking. The board of directors of an undertaking typically has the authority in view of its statutory powers. Applying the criterion to the present case, the ACM determined that this personal union would also have to include the supervisory bodies of the Parties and the new legal entity if it is to be considered full and permanent, given that those bodies have powers relating to the commercial strategy of the undertaking.
Furthermore, the full and permanent character of the personal union is only considered to be safeguarded when it is governed by permanent rules or binding agreements so as to assure its continued existence. However, the possibility to dissolve the concentration in itself does not imply that it is not "safeguarded", provided that such dissolution can only be invoked under highly exceptional circumstances. In other words, the mere possibility to dissolve the union would not preclude the characterization of the transaction as a concentration.
As both conditions were met, the ACM concluded that the envisaged transaction qualifies as a concentration. It should be noted, however, that the ACM only delivered an informal opinion and therefore did not substantively assess the transaction.