NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
5. Overview of Regulatory Requirements 5.1 Regulations Applicable to Energy and Infrastructure Companies Several specific regulations must be considered when setting up and starting to operate a new company in the energy and infrastructure sector in the Neth- erlands. Permitting and environmental impact assessments – projects involving wind, solar, geothermal, and hydro- gen energy require permits under the Environmental and Planning Act ( Omgevingswet ). Large-scale pro- jects must follow a procedure including environmental impact assessments (EIA), public participation, and co-ordination across government levels. The Neth- erlands Enterprise Agency (RVO) oversees permits, issued by local or central governments based on pro- ject size. An EIA ( Milieueffectrapportage – MER) may be required, evaluating factors like air quality, noise, and climate impact. Whether mandatory or subject to screening depends on the project’s scale. Electricity and gas regulation – the upcoming Energy Act ( Energiewet ), entering into force in 2026, replaces the Electricity and Gas Acts of 1998. It introduces a unified legal framework for electricity and gas produc- tion, trading and supply, grid management, metering and consumer protection, aligned with EU directives. Whereas grid operation is, in principle, reserved for designated public grid operators, the production, stor- age, trade and supply of electricity is, in principle, a free-market activity subject to technical rules and reg- ulations (other than supply to small consumers). The Dutch Authority for Consumers and Markets (ACM) supervises the energy sector and sets special rules regarding, inter alia, grid access, congestion manage- ment and grid fee structures, and other rules relevant to grid-connecting projects and companies. National infrastructure projects – the Multi-Year Pro- gramme for Energy and Climate Infrastructure pri- oritises infrastructure such as high-voltage lines and hydrogen pipelines. The government may accelerate permitting through co-ordinated procedures with grid operators.
5.2 Primary Securities Market Regulators The primary securities market regulator for M&A trans- actions in the Netherlands is the Dutch Authority for the Financial Markets ( Autoriteit Financiële Markten , AFM). 5.3 Restrictions on Foreign Investments On 1 June 2023, the Investments, Mergers and Acqui- sitions (Security Screening) Act (“Vifo Act”) came into force in the Netherlands. The Vifo Act aims to mitigate risks to national security by subjecting certain invest- ments in vital providers, companies active in sensitive technologies and managers of business campuses to a mandatory filing obligation and prior screening by the Dutch authority for investment screening (BTI: Bureau Toetsing Investeringen ), and applies to target compa- nies established in the Netherlands (regardless of the investors’ establishment). The filing obligation under the Vifo Act applies to the acquisition of a target company (leading to a change of control) with activities relating to one of the follow- ing categories: • vital providers, ie, in heat transport, nuclear energy, air transport, a port area, banking, financial market infrastructure, extractable energy, or gas storage; • companies active in the field of (highly) sensitive technology, including companies active in the field of dual-use or military goods, as well as companies active in quantum technology, photonics technol- ogy, semiconductor technology, or high assurance technology; and • managers of business campuses. For companies active in the field of highly sensitive technology, the filing obligation already applies if the transaction would lead to the acquisition or increase of “significant influence”. This applies to persons with certain percentages of voting rights (at least 10%, 20%, or 25%), the ability to appoint or dismiss a director, or otherwise (eg, agreements that indicate significant influence). There are also sector-specific regimes for companies active in the energy and telecoms sectors, and one for the defence sector is currently in the making.
289 CHAMBERS.COM
Powered by FlippingBook