NETHERLANDS LAW AND PRACTICE Contributed by: Friederike Henke, Ingrid Cools, Philip ter Burg, IJsbrand Uljée, Suzan van de Kam and Epke Spijkerman, BUREN
implementation. If the Dutch notification thresh - olds are met, then companies must comply with the Dutch notification requirements. In principle, the Commission only examines larg - er mergers with an EU dimension if the merging firms reach certain turnover thresholds. There are two alternative ways to reach turnover thresholds. • The first alternative requires: (a) a combined worldwide turnover of all the merging 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 require - ment 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 states. Mergers without an EU dimension are subject to Article 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 calendar year before the concentration and at least two of the com -
panies involved earned at least EUR30 million in the Netherlands. According to Article 27 (1) of the Dutch Com - petition Act, the following types of transactions (concentrations) are subject to merger control: • the merger of two or more previously inde - pendent companies; and • the acquisition of direct or indirect control by: (a) one or more natural persons or legal enti - ties 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 deci - sive 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 concentrations under Section 27 (b)(1) of the Dutch Competition Act. Sector-specific thresholds apply to pension funds and banks and financial institutions. 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 relat - ing to Regulation (EC) 139/2004 on the control of concentrations between undertakings (the “Merger Regulation”). 6.2 Merger Control Procedure The ACM assesses concentrations in two phas - es. During Phase 1, which starts with the notifi -
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