NETHERLANDS Law and Practice Contributed by: Jan-Willem van Rooij, Anne Brugmans and Jordy Kusters, Loyens & Loeff
All investments falling within the scope of the Vifo Act must be notified to the BTI. The system has suspen- sive effect, which means that a standstill obligation applies. The transaction may therefore not proceed until the BTI has taken a decision or has notified that no assessment decision is required. 5.4 National Security Review/Export Control The investment test under the Vifo Act was imple- mented to mitigate risks to national security. Based on the Vifo Act, the authority considers factors such as the ownership structure and track record of the investor, as well as the (direct and indirect) national security situation in the investor’s country of origin. 5.5 Antitrust Regulations In the Netherlands, mergers and acquisitions are assessed by the ACM. A proposed transaction must be notified to the Dutch competition authority, if: • the aggregate worldwide turnover of the under- takings concerned in the previous calendar year exceeds EUR150 million; or • the individual turnover in the Netherlands of each of at least two of the undertakings concerned was at least EUR30 million in the previous calendar year, provided the proposed transaction does not have an EU dimension. The ACM will decide within four weeks whether a licence is required. If so, the ACM has 13 weeks to make a decision. Both periods are paused each time the ACM requests information from the parties. The period will resume when the parties have submitted their answers to the questions posed. The system has suspensive effect, which means that a standstill obli- gation applies. In recent years, the ACM has on many occasions expressed its concern about so-called “roll-up” strate- gies, by which a company purchases a string of small- er competitors through separate, unrelated acquisi- tions. This call has been picked up by the legislature, whereby a legislative initiative bill is currently pending before the House of Representatives ( Tweede Kamer ) (and the Senate ( Eerste Kamer ) after that), which is aimed at providing the ACM with the power to assess mergers and acquisitions below the thresholds (to the
extent that at least one party to the concentration had a turnover of EUR30 million or more in the preceding calendar year) if it sees potential competition risks (call-in power). If this bill would be adopted, the ACM would be enti- tled to (also retroactively) “call-in” such concentra- tions for review within four weeks of the earliest of the following dates: • the date on which one of the undertakings involved in the concentration has publicly announced in the Netherlands its intention to bring about the con- centration; • the date on which the ACM becomes aware of the intention to bring about the concentration; and • six months after the date on which the agreement by which the concentration is brought about. 5.6 Labour Law Regulations In the context of a transaction, buyers should keep, in addition to standard compliance with Dutch labour law and the potential impact of the transfer on employ- ment conditions (eg, change of control provisions), primarily the following in mind. Works Council Under Dutch law, a company with 50 employees or more is obliged to establish a works council. A works council has the right to render its advice on a contem- plated decision to, amongst other things: • transfer control over the company or a part thereof; • significant reduction, expansion, or other change in the activities of the company; • a significant change in the organisation of the enterprise or in the distribution of powers within the enterprise; or • when commissioning an expert from outside the company to advise on any of the matters the works council has a right of advice on (eg, commissioning an expert who advises the company regarding a contemplated decision to transfer the control over the company). This means that the acquiring party must consider the involvement and potential advisory rights of both its
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