NETHERLANDS Law and Practice Contributed by: Herald Jongen, Maarten de Boorder, Samuel Garcia Nelen and Jelmer Kalisvaart, Greenberg Traurig, LLP
deal’s closure. The trade unions reserve the right to request consultation regarding the social and economic implications of the transaction. 7.7 Currency Control/Central Bank Approval The Netherlands does not have foreign exchange controls. M&A transactions involving financial institutions are subject to the supervision of sector-specific regulators, such as the European Central Bank (for banks) or the DNB (for other financial institutions, such as insurance compa- nies). 8. Recent Legal Developments 8.1 Significant Court Decisions or Legal Developments The first court decision involving the Vifo Act (described in the foregoing), issued by the district court of Rotterdam on 25 April 2024 (ECLI:NL:RBROT:2024:3747), pertains to the acquisition of a former Philips subsidiary. According to the court, there was no notification obligation since there was no acquisition activity within the meaning of the Vifo Act (the “acquirer” already had control over the company prior to the transaction). Another significant legal development in the Netherlands related to technology M&A in recent years is the 2023 ruling by the ACM regarding the acquisition of Talpa Network by the RTL Group. The ACM blocked the acquisition on antitrust grounds, citing concerns about poten- tial harm to competition for television advertise- ments and for the transmission of the channels via telecommunications companies. Telecom providers such as KPN and Vodafone-Ziggo are including commercial TV channels in their chan- nel offering. After the acquisition, they would not
be able to ignore RTL/Talpa, which would also be able to charge higher prices to consumers for a television subscription. This decision was significant as it reflected an increasingly stringent approach by Dutch regula- tors towards (tech) mergers, particularly in mar- kets where consumer choice and innovation could be adversely affected. The ruling not only set a precedent for future mergers in the technol- ogy and telecommunications sectors but also highlighted the growing importance of antitrust considerations in M&A transactions. 9. Due Diligence/Data Privacy 9.1 Technology Company Due Diligence There are no hard and fast rules on what infor- mation a public company is allowed to provide to bidders in the Netherlands. Generally, any infor- mation that is relevant for investors is already disclosed. Due diligence typically focuses on the verification of public information and testing the strategic plans (including potential synergies) of the bidder based on a detailed assessment of available information. Generally, bidders try to avoid obtaining inside information (ie, non- public information that is share price sensitive) from the public company. A sales process of a public company with multiple bidders is gener- ally set up informally based on public informa- tion, after which one bidder is granted exclusivity and allowed to perform due diligence. The level of technology due diligence that a board of directors may allow depends on the strategic importance of the technology assets and intellectual property involved. The board has a duty to safeguard the company’s critical assets while balancing the bidders’ need to conduct thorough due diligence. For companies in sec-
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