NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
FDI filing, a standstill obligation applies under which the parties are prohibited from implement- ing the proposed transaction before the required clearance is obtained from the BTI. These meas- ures are in place to protect national security and safeguard critical infrastructure from potential foreign influence. 7.4 National Security Review/Export Control There is no general national security review of acquisitions in the Netherlands. However, since the Dutch National Security Investment Act ( Wet veiligheidstoets investeringen, fusies en over- names or the “NSI Act”) entered into force on 1 June 2023, there are certain considerations for investors/buyers who are willing to invest in or acquire a target company in the Nether- lands that is a (i) vital provider, (ii) manager of a corporate campus or (iii) sensitive technology company. A company that operates, manages or makes available a service whose continuity is vital to Dutch society is considered a vital provider. Examples include key financial market infrastructure providers like significant banks, payment services providers, trading platforms, major transport hubs (Schiphol Airport and the Port of Rotterdam), heat network or gas stor- age operators and extractable energy or nuclear power companies. The notification requirement resulting from the NSI Act applies irrespective of the nationality of the acquirer. The notification obligation applies to both the acquirer and the target company. The acquirer is exempted from the obligation to report if the investor cannot know that the investment is subject to a notification obligation due to a secrecy obligation of the target com- pany.
In addition to the NSI Act, the main laws current- ly in force in the Netherlands containing foreign investment review-related provisions are: • the Dutch Electricity Act 1998; • the Dutch Gas Act; • the Dutch Financial Supervisory Act; • the Dutch Gambling Act; • the Dutch Healthcare Market Regulation Act; • the Dutch Mining Act; and • the Dutch Telecommunications Act, as amended by the Dutch Act on undesired con- trol in telecommunications. In the Netherlands, the EU restrictions regard- ing the export of so-called dual-use goods and services apply. As a result, the supply of certain TMT goods, services and know-how to non-EU destinations is restricted, or is subject to licences and other export compliance obli- gations. In cases concerning exports to des- tinations in connection with which the EU has implemented economic sanctions – eg, Russia and Belarus – export restrictions apply to a much larger range of TMT products and services. In addition to compliance with EU regulations, in many instances it is a requirement to also consider export-related restrictions or compli- ance obligations from other jurisdictions when exporting from the Netherlands. Businesses are expected to do careful due diligence and prevent circumvention of export restrictions in the con- text of TMT supplies. Compliance is monitored by, among others, customs authorities and the Dutch Ministry of Foreign Affairs, in close co- operation with the EU and the authorities in other EU member states. 7.5 Antitrust Regulations In the Netherlands, business combinations such as mergers, acquisitions or joint ventures that are not subject to EU merger control may be
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