As of 1 September 2025, the Netherlands Authority for Consumers and Markets (ACM) will have the power to investigate mergers and acquisitions (M&A transactions) for abuse of a dominant economic position. This is the result of an amendment to the Competition Act (Mw).
Article 24(1) of the Competition Act prohibits companies from abusing a dominant position. This provision has been in place for decades, but could never be applied to M&A transactions. Article 24(2) of the Competition Act explicitly stated that M&A transactions could not constitute abuse. This amendment to the law has now changed that. In concrete terms, this means that M&A transactions that are not subject to notification – because they fall below the turnover thresholds of Article 29 Mw – can now be fined and prohibited by the ACM (Authority for Consumers and Markets) after the fact.
The reason for this is the Towercast judgment of the European Court of Justice (ECJ). In this judgment, the ECJ ruled that national competition authorities can apply the European prohibition of abuse (Article 102 TFEU) to M&A transactions that fall below the notification thresholds. A dominant position is generally assumed to exist when a market share of 50% is reached. Simply having a dominant position is not sufficient. It must be demonstrated that the degree of dominance achieved by the transaction substantially impedes competition, i.e. that only companies that are dependent on the dominant player remain.
This new power may lead to uncertainty in M&A transactions. Companies would be well advised to consider the risk in advance and make agreements about alternative scenarios. This is particularly important in cases where a buyer with a high market share acquires a (small) competitor. The companies involved may face unpleasant proceedings and negative publicity. The mere fact that the ACM launches an investigation can be disastrous, regardless of the outcome. This is evident from two transactions in Belgium: Proximus/EDPnet and Ceres/Dossche Mills. In both cases, the companies abandoned the transaction after an investigation by the Belgian competition authority.
The ACM has already launched a Towercast-inspired investigation into the acquisition of Ziemann by Brink's. A day earlier, the ACM had already noted that the prohibition of cartels and the prohibition of abuse of a dominant position may apply to another non-notifiable acquisition in the fruit sector. Both investigations were launched (well) before this legislative amendment came into force, so the question is to what extent these investigations are legitimate.
Be that as it may, it stands to reason that the ACM will launch investigations more frequently, at least until it is granted the so-called call-in power. From that moment on, the ACM will be able to demand notification of every transaction if it has reason to believe that competition may be restricted and if one of the companies involved has a turnover of more than €30 million in the Netherlands. This will have even greater consequences for M&A practice. To be continued.
This blog also appeared in the Snelrecht section of the trade journal Mr. Online.
For all information about a company visit by ACM and the European Commission, see invalacm.nl
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