NETHERLANDS Law and Practice Contributed by: Maarten de Boorder, Samuel Garcia Nelen, Jelmer Kalisvaart and Bas Vletter, Greenberg Traurig, LLP
2.5 Labour Law Regulations If a transaction is structured as a share deal, the acquirer obtains the target “as is”, including all employees and connected contracts and collective regulations. If the transaction is structured as an asset deal and, as a result, a “business” is being transferred on a going concern basis, all employees predominant - ly working for such business will automatically transfer together with all their applicable employment terms and conditions to the acquirer (ie, so-called TUPE or a transfer under the Acquired Rights Directive). In such scenario, the acquirer should be able to replicate all employment terms and conditions as of the employee transfer date. Specific exemptions apply in relation to collective bargaining agreements and pensions dependent on facts and circumstances. In case of a (direct) change of control of an entity in which a works council is established or in case the business transfer relates to such entity, the works council has a prior right of advice. For transactions primarily concerning the Dutch mar - ket, where the entity or group entity employs 50 or more individuals in the Netherlands (either on the seller’s or acquirer’s side), there is a requirement to notify, in a timely manner, the Dutch Social Economic Council ( Sociaal-Economische Raad or SER) and rel - evant trade unions (if any) ahead of the deal’s closure. The trade unions reserve the right to request consulta - tion regarding the social and economic implications of the transaction. 2.6 National Security Review On 1 June 2023, a broad Dutch National Security Investment Act ( Wet veiligheidstoets investeringen, fusies en overnames or NSI Act) entered into force, covering acquisition activities involving any target company in the Netherlands that is a (i) vital provider, (ii) manager of a corporate campus, or (iii) sensitive technology company. Under the NSI Act, a company that operates, man - ages or makes available a service whose continuity is vital to Dutch society is considered a vital provider, such as key financial market infrastructure providers like significant banks, payment services providers, and trading platforms, main transport hubs (Schiphol
Some M&A transactions are subject to the supervision of sector-specific regulators, such as the European Central Bank (for banks), the Dutch Central Bank (for other financial institutions, such as insurance compa - nies) or the Dutch Healthcare Authority (for healthcare providers). 2.3 Restrictions on Foreign Investments The Netherlands has an open economy and welcomes foreign investments and investors. For some industries there may be restrictions in terms of acquisitions, or a notification to, or the authorisation of, a regulator may be required. For more information on national security review, see If a business combination is not subject to EU merger control review, a proposed merger, acquisition, or full- function joint venture may have to be notified to the ACM. Changes of control – as defined in the Dutch Competition Act – are subject to the Dutch merger control regime. This implies that the acquisition of a minority interest is not notifiable as long as it does not confer control (eg, through veto rights). A mandatory pre-closing merger filing in the Nether - lands is required if, in the last calendar year prior to the transaction: (i) the combined worldwide turnover of the companies concerned is EUR150 million or more, and (ii) the turnover in the Netherlands of each of at least two companies is EUR30 million or more. Special turnover thresholds apply to certain sectors. The regime in the Netherlands comes with a standstill obligation, which means that a proposed transaction cannot be consummated until after approval has been obtained. 2.6 National Security Review . 2.4 Antitrust Regulations The ACM will assess whether, as a result of a pro - posed transaction, effective competition on the Dutch market or part of it would be significantly impeded, in particular as a result of the creation or strengthening of a position of economic power.
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