NETHERLANDS Law and Practice Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
shifted to an EU member state through the use of a non-hybrid instrument. • Hybrid PEs – a permanent establishment is treated differently between jurisdictions as regards the presence or attribution of profit to business activi - ties in the jurisdictions. • Dual resident mismatch – a payment made by a dual resident company may be deductible in multi - ple jurisdictions. A separate anti-mismatch rule applies to “reversed hybrid situations”, which concern entities that are treated as transparent in the jurisdiction of incorpora - tion or registration, and that are treated as non-trans - parent in the jurisdictions of their participants. Reverse hybrid entities are subject to corporate income tax in the Netherlands. Furthermore, a reverse hybrid entity may also be subject to dividend withholding tax and conditional withholding tax. Taxpayers are required to have information in their administration substantiating whether or not any hybrid mismatch rules are met. If such information is not present, the tax inspector could request the provision of such documentation and the taxpayer would have the burden of proof that no hybrid situa - tion would be present. 5.8 Tariffs The Netherlands is part of the EU customs union. This implies that the Dutch tariff regime is equal to the tariff regimes of other EU member states and that no tariffs are imposed on intra EU transactions. The applica - ble rates on import of goods with non-EU origin differ depending on the kind of goods and their origination. The EU has a huge number of trade agreements in place with third countries and regions. A considerable number of trade agreements are under renegotiation.
The European Commission must be notified of any merger with an EU dimension prior to its implementa - tion. If the Dutch notification thresholds are met, then companies must comply with the Dutch notification requirements. In principle, the Commission only examines larger mergers with an EU dimension if the merging firms reach certain turnover thresholds. There are two alter - native ways to reach turnover thresholds. • The first alternative requires: (a) a combined worldwide turnover of all the merg - ing firms of more than EUR5 billion; and (b) an EU-wide turnover for each of at least two of the firms of more than EUR250 million. • The second alternative requires: (a) a worldwide turnover of all the merging firms of more than EUR2.5 billion; (b) a combined turnover of all the merging firms of more than EUR100 million in each of at least three member states; (c) a turnover of more than EUR25 million for each of at least two of the firms in each of those three member states; and (d) an EU-wide turnover of each of at least two firms of more than EUR100 million. In both alternatives, the EU dimension requirement is not met if each of the firms achieves more than two thirds of its EU-wide turnover within one and the same EU member state. Mergers without an EU dimension are subject to Arti - cle 29 of the Dutch Competition Act, under which the Dutch Authority for Consumers and Markets ( Autoriteit Consument en Markt – ACM) must be notified of a concentration if both the combined turnover of the firms involved is more than EUR150 million in the cal - endar year before the concentration and at least two of the companies involved earned at least EUR30 mil - lion in the Netherlands. According to Article 27 (1) of the Dutch Competition Act, the following types of transactions (concentra - tions) are subject to merger control:
6. Competition Law 6.1 Merger Control Notification
Mergers can be subject to either EU or Dutch merger control rules. The rules in the Dutch Competition Act are based on and essentially resemble the EU com - petition rules.
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