NETHERLANDS Law and Practice Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
• the merger of two or more previously independent companies; and • the acquisition of direct or indirect control by: (a) one or more natural persons or legal entities that already control one company; or (b) one or more companies of the whole or parts of one or more other companies, through the acquisition of a participating interest in the capital or assets, under an agreement or by any other means. Control is defined as the ability to exercise decisive influence on the activities of a company on the basis of factual or legal circumstances. Long-term joint ventures performing all functions of an autonomous economic entity are seen as concentra - tions under Section 27 (b)(1) of the Dutch Competition Act. Sector-specific thresholds apply to pension funds, banks, financial institutions, energy, telecoms, trans - port and postal services. The Dutch Competition Act is enforced by the ACM, which is an autonomous administrative authority that operates independently of the Ministry of Economic Affairs. The ACM is also the local competent authority for matters relating to Regulation (EC) 139/2004 on the control of concentrations between undertakings (the “Merger Regulation”). 6.2 Merger Control Procedure Transactions meeting the thresholds of the Dutch Competition Act must be notified to the ACM. The intended transaction must be notified before its com - pletion, and the concentration may not be effected before four weeks have passed after the notification (Article 34 (1) of the Dutch Competition Act). The ACM assesses concentrations in two phases. During Phase I, which starts with the notification, the ACM must decide within four weeks whether the transaction requires a licence. If no licence is required, the parties can execute the transaction. If the ACM decides that a licence is required, the par - ties can apply for the licence at their own discretion
and timing. However, the transaction cannot be com - pleted without a licence. Phase 2 is initiated with the submission of a licence application, after which the ACM conducts a more in-depth analysis of the effects of the concentration. The ACM must decide on the application within 13 weeks, failing which the con - centration is deemed approved. However, the Phase 2 procedure often takes more time, mainly due to stop- the-clock requests for additional information. If the ACM decides not to grant a licence, the applicants are not allowed to execute the transaction. If the proposed concentration involves a healthcare company employing 50 or more healthcare providers in the Netherlands, the companies involved must first notify the Dutch Healthcare Authority ( Nederlandse Zorgautoriteit – NZa) of the intended transaction so that it can assess the possible effects of the concen - tration. Two or more concentrations taking place between the same persons or undertakings within a period of two years shall be regarded as one concentration effected on the day of the last transaction. 6.3 Cartels The rules in the Dutch Competition Act governing anti-competitive agreements, decisions and con - certed practices essentially resemble the EU rules. Agreements between companies, decisions by asso - ciations of companies and concerted practices that restrict competition or aim to do so are prohibited; this includes both horizontal and vertical restrictions of competition. Under certain conditions, anti-competitive agree - ments are exempted from this prohibition. The respec - tive national provisions again reproduce the conditions required under EU law. Exemptions include agree - ments that serve to improve the production of goods or promote technical progress while allowing consum - ers a fair share of the resulting benefit. The European Commission’s block exemptions, such as the EU Ver - tical Agreements Block Exemption Regulation, apply mutatis mutandis. Agreements or concerted practices in violation of rules governing anti-competitive agree - ments and practices are, in principle, null and void.
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