The legislative proposal for a call in power for the ACM (in Dutch: Wet inroepbevoegdheid ACM) (the “Proposal”) was open for public consultation from 18 March through 18 April 2025. The Proposal aims to create a new call-in power for the Dutch Authority for Consumers and Markets (“ACM”), which allows it to supervise concentrations ex ante. The Proposal is specifically focused on non-notifiable concentrations that do not meet the revenue thresholds. The chairman of the ACM, Martijn Snoep, has on several occasions expressed the view that such a call-in power is desirable. The Proposal was introduced by two Members of Parliament, Bushoff and Jansen, and did not come from the Ministry of Economic Affairs, that still thought about a broader proposal to amend the Dutch Competition Act.
Call-in power
The proposal leads to an adjustment of the chapter on concentrations in the Dutch Competition Act through the addition of several articles. This chapter is focused on the creation of concentrations, specifically mergers, acquisitions and joint ventures, and obliges parties to notify the ACM of certain concentrations. This obligation to notify is applicable to concentrations that fulfil two conditions: the joint turnover of the parties involved in the transaction is higher than EUR 150 million and at least two of the parties must generate a revenue of a minimum of EUR 30 million in the Netherlands.
The call-in power that is introduced by the Proposal creates the possibility for the ACM to still investigate concentrations where there is no obligation to notify, because of a limited turnover of the undertakings involved. The ACM can request parties to provide information within four weeks on the basis of which the authority can look into the concentration. Such a request can be made by the ACM within four weeks after the earliest of the following moments:
- the date on which one of the undertakings involved in the concentration has publicly announced the intention to implement the concentration in the Netherlands;
- the date on which the ACM obtains knowledge of the intention to bring about the concentration;
- six months after the time when the agreement bringing about the concentration took effect.
If the ACM concludes that the non-notifiable concentration significantly impedes effective competition in the market or a substantial part of it based on the requested information, it can oblige a notification of the concentration and prohibit the creation of the concentration. This is specifically the case when a dominant position is created or strengthened by the concentration. After requiring the notification, the same procedure is followed as compared to concentrations above the notification thresholds. The Explanatory Memorandum of the Proposal does emphasize that the ACM should avoid the prohibition or reversal of already initiated or completed concentrations as much as possible.
Background
The ACM and other national competition authorities feel a need to take action against “killer acquisitions” and relatively small concentrations in a short period of time (“roll-up strategy”), because these concentrations can restrict the competition on the market – also when they are not notifiable. Killer acquisitions are acquisitions of innovative, emerging undertakings with a low revenue by an undertaking with a dominant position to stifle future competition. The roll-up strategy entails that undertakings perform multiple acquisitions in a row in a short period of time to obtain a larger market share.
These kind of concentrations often do not meet the revenue thresholds. In that case, the ACM solely has the power to investigate these concentrations ex post, when they lead to an abuse of a dominant position or an infringement of the cartel prohibition. A recent example of this is the ACM’s investigation into the acquisition of Ziemann by Brink’s. For a long time, it was thought that concentrations could not be subjected to scrutiny on the basis of Article 101 and 102 of the Treaty on the Functioning of the European Union (“TFEU”), but this was refuted by the Towercast judgment of the Court of Justice of the European Union (“CJEU”) in 2023. In that sense, it must be noted that Article 24(2) of the Dutch Competition Act prevents the application of the Dutch equivalent of Article 102 TFEU to concentrations, but please note that another legislative proposal is pending before the Dutch Senate (in Dutch: Wetsvoorstel tot Wijziging van de Kaderwet EZK- en LNV-subsidies en enkele andere wetten op het terrein van EZK 20) has been issued to remove this article from Dutch competition law and allow for the application of article 24(1) to concentrations.
The introduced call-in power enables the ACM to investigate such concentrations ex ante rather than ex post. In a few other EU and EEA Member States, this call-in power exist already, or legislative procedures have been initiated to create it.
Article 22 of the Merger Control Regulation
In the past, national competition authorities and the European Commission already tried to address killer acquisitions through a new interpretation of Article 22 of Regulation 139/2004 (“Merger Control Regulation”), but that route was cut off by the CJEU in Illuminia / Grail (see our previous article on this topic here).
Implications of the Proposal
The Proposal is subjected to criticism: specifically its consequences on legal certainty would be extensive, because, right now, undertakings still know for sure that concentrations below the revenue thresholds are not investigated by the ACM. These non-notifiable concentrations can – if the Proposal is passed – still be subjected to an investigation by the ACM within four weeks after the earliest of the three possible times, as previously illustrated. The applicable time period must be determined on a case-by-case basis. This will lead to a lot of uncertainty and further administrative burden in regard to future, non-notifiable mergers and acquisitions, because the parties involved will now have to consider in advance whether the proposed concentration could lead to a significant impediment to competition in the market. If that is the case, they can contemplate to inform the ACM of the proposed concentration as early as possible to get clarity on the continuance of the transaction sooner. Moreover, this will increase the administrative burden on the ACM. A remarkable detail is that the ACM has also already provided feedback during the consultation and proposes to limit the scope of the Proposal: at least one of the undertakings involved in the transaction must have generated a revenue of EUR 30 million in the Netherlands.
Conclusion
Before it will be passed, the Proposal must go through the remainder of the legislative procedure. Given the previously mentioned objections, that are also illustrated in reactions to the consultation, the question is whether the content of the current Proposal will remain the same. In its current form, the Proposal will have far-reaching consequences for the M&A practice.
