NETHERLANDS Trends and Developments Contributed by: Herald Jongen, Radboud Ribbert, Nienke Bernard and Wouter van Wengen, Greenberg Traurig, LLP
( Telecommunicatiewet ). Under the Vifo Act, a transaction may be prohibited or conditionally approved where it leads to the realisation of one or more risks to national security. The notifica - tion requirements resulting from the Act apply irrespective of the nationality of the acquirer. The Vifo Act applies to certain acquisition activities in relation to a target company established in the Netherlands that is either: • a vital provider; • a provider or manager of a corporate cam - pus; or • an undertaking active in the field of sensitive technology. The Act defines vital providers, eg, in the field of nuclear energy, and infrastructure for the finan - cial market. Sensitive technology includes: • dual-use products that are subject to authori - sation for their export under Regulation (EU) 2021/821 (ie, the EU Dual-Use Regulation); • quantum technology (ie, quantum computing, quantum communication, quantum sensing (also known as quantum metrology)); • photonics technology; • military goods as referred to in Article 2 of the Dutch Strategic Goods Implementation Regu - lation 2012 ( Uitvoeringsregeling strategische goederen 012). Changes of control – as defined in the Dutch Competition Act ( Mededingingswet ) – are caught. However, in the case of a target under - taking active in the field of sensitive technology, the acquisition or increase of significant influ - ence – which is below the level of control – by an acquirer is equally caught. The Vifo Act sets out that such acquisition or increase may occur in • semiconductor technology; • high assurance products; and
different ways. For example, where a person can cast 10% of the votes of the general meeting in a target undertaking. Therefore, certain minority interests that do not result in a change of control are caught under the Act. The notification obligation pursuant to the Vifo Act applies to both the investor/acquirer and the target company. Although there is no hard dead - line for submitting a notification, the Act’s regime has suspensory effect, meaning that a transac - tion may not be implemented before clearance. The Dutch Minister of Economic Affairs is the competent authority under the Act. However, in practice, the Dutch Investment Review Office ( Bureau Toetsing Investeringen ) (hereafter BTI), which falls under the Dutch Ministry of Economic Affairs, acts as a co-ordinator for any Act review. The BTI reviews completed under the Vifo Act in the calendar year 2023 took an average of 40 days. Most reviews under the Vifo Act took between 27 and 53 days to process. The short - est matter had a processing time of 13 days – and the longest took 83 days. However, it should be noted that 12 out of 34 of the Vifo Act reviews in 2023 continued into 2024 and are not included in these averages. These include notifications that were made at the end of the 2023 and com - plex investigations that took longer. The average review time in 2023 likely will be lower than for 2024. In 2023, the BTI extended the review time of six investigations (out of 34) under the Vifo Act. For 2025 and beyond, the general expectation is that BTI’s intervention rate will continue to increase, leading to complexity and uncertain - ties, and longer reviews under the Act. It will therefore be crucial for deal makers to consider the Act’s regime in the context of M&A, along - side merger control and other regimes (eg, the
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