The Netherlands Authority for Consumers and Markets (ACM) has repeatedly expressed, through its chairman Martijn Snoep, its wish to have more powers in the field of merger control (see here, here, and here). The reason for this is that ACM is concerned about ‘killer acquisitions’, whereby big companies take over small innovative players with the aim of preventing future competition. ACM is also wary of so-called ‘bead stringing’ strategies, whereby companies gradually take over competitors without being under any obligation to notify ACM.
ACM’s wish may be fulfilled if the ‘ACM Call-In Power Act’ bill, which was published and submitted for internet consultation in March 2025, is enacted. The bill provides for an amendment to the Mededingingswet (Competition Act), giving ACM the power to review mergers and acquisitions below the usual turnover thresholds, and possibly to prohibit them (the ‘call-in power’).
In an opinion piece in the Financieele Dagblad newspaper, we previously addressed the question to what extent new legislation is really necessary in order to prohibit smaller mergers and acquisitions, since the extent of the alleged problem remains unclear. The bill does not answer this question. The proposed expansion of powers also raises important legal questions, particularly regarding legal certainty for companies.
The bill: what’s it about?
The bill introduces five new articles (Articles 49a-49e) to supplement the current Competition Act. The most radical change is that, under Article 49a(1), ACM may request information from a company that it reasonably considers necessary to assess whether a concentration below the turnover thresholds could significantly impede competition on the Dutch market.
ACM may exercise this power:
- within four weeks after the publication of the proposed concentration in the Netherlands;
- within four weeks after the moment ACM becomes aware of the proposed concentration; or
- no later than six months after the signing of the acquisition documents.
If, after the proposed amendment to the Competition Act, ACM has reason to believe that the concentration may significantly impede competition, Article 49b(1) gives it the right to obligate the companies in question to notify the concentration after all. A four-week standstill period then applies, during which the parties may not close the acquisition. ACM will impose the obligation to notify within four weeks after the end of the reasonable period within which the parties were required to provide the requested information (Article 49b(2) of the Competition Act).
Background: ACM’s recent enforcement practice
Foresco
The proposed call-in power is in keeping with ACM’s broader ambition (and long-standing wish) to tackle killer acquisitions and ‘bead stringing’. It already has the means to do so, as practice has shown: in its recent assessment of the acquisition of a pallet seller by its competitor Foresco, ACM assessed (for the first time) an acquisition from a bead-stringing perspective.
Although ACM stated in its decision that, in principle, it is neutral towards such a strategy and acknowledges that it may also have positive effects, it also pointed to the potential competition problems. According to ACM, a series of small acquisitions may hinder competition just as much as one large acquisition that does exceed the turnover thresholds: such a strategy may lead to the creation or strengthening of a dominant position, or enable a future dominant position.
Brink’s
ACM’s broader commitment to combating bead stringing and similar strategies also follows from the investigation announced in March 2025 into the acquisition of Ziemann by cash-in-transit company Brink’s. That acquisition fell below the notification thresholds and was therefore not subject to notification (we previously wrote a blog on this subject). Nevertheless, ACM notes that “there are realistic competition concerns, on the face of it.”
This is the first time that ACM has initiated a so-called ‘Towercast case’ in the Netherlands. That term refers to the judgment of the European Court of Justice confirming that concentrations that are not subject to notification may, under certain circumstances, be investigated by national competition authorities on the basis of the prohibition of abuse of a dominant position. Whereas Towercast focused exclusively on the doctrine of abuse of a dominant position, ACM is also investigating the acquisition of Brink’s on the basis of the cartel prohibition. However, a cartel infringement is unlikely in the case of a (completed) acquisition.
Does ACM in fact already have the proposed powers?
ACM’s investigation into the Brink’s acquisition gives rise to fundamental questions about ACM’s current powers and whether it is not already exercising powers that it wishes to obtain. This is particularly due to the fact that Article 24(2) of the Competition Act expressly states that “the creation of a concentration within the meaning of Article 27 of the Competition Act does not constitute abuse of a dominant position.”
This therefore gives rise to a fundamental legal contradiction:
- If ACM already has the power to investigate acquisitions that are not subject to notification (on the grounds of the cartel prohibition, for instance), its investigation into Brink’s is lawful, but the extension of the law is unnecessary.
- If ACM does not currently have these powers, its actions in the Brink’s case must be considered unlawful.
Furthermore, ACM’s actions appear to be at odds with the principle of legality, a key element of good governance. Instead of basing its decisions on a clear legal ground, ACM is first intervening and only later explaining its reasoning. This gives rise to questions regarding the validity of its actions, particularly because, under current legislation, in particular Article 24(2) of the Competition Act, there appears to be no basis for blocking acquisitions without prior, sufficient justification. Martijn Snoep has in fact confirmed this:
“The Competition Act does not currently give ACM the power to subject small acquisitions to a merger or acquisition review.”
It is also possible that ACM is attempting to circumvent the prohibition in Article 24(2) of the Competition Act by invoking Article 102 of the Treaty on the Functioning of the European Union (TFEU). This article prohibits the abuse of dominant positions by companies at a European level. Unlike Article 24(2) of the Competition Act, Article 102 TFEU does not impose the same restrictions. Although this is a legally creative approach, it leads to considerable legal uncertainty for companies. ACM has also already warned of fines and the break-up of companies that do not voluntarily notify their transaction beforehand.
Legislative proposal does not remove legal uncertainty
One of the most problematic aspects of the new ACM approach is the lack of clear guidelines. In the case of Brink’s, ACM did not provide clear guidance beforehand on the criteria it would use to invoke its powers. Furthermore, Brink’s is not active in a market that ACM had previously announced it wanted to investigate.
This is not improved by the proposed broadening of the Competition Act. The Explanatory Memorandum to the bill emphasises that ACM must, where possible, avoid later prohibiting a concentration that has already been initiated or completed. At the same time, the Explanatory Memorandum provides that it is not possible to determine beforehand when competition on the Dutch market will be significantly impeded, since that must be assessed on a case-by-case basis. It also provides that ACM may provide further clarification in the form of policy rules, but does not state that this will be an obligation under the broadening of the law.
This area of tension makes it difficult for market parties to assess whether their acquisitions may be scrutinised by ACM. In practice, this will lead to significant – and, in our opinion, indefensible – legal uncertainty for companies.
Implications of the bill for Dutch businesses
The uncertainty created by ACM’s current enforcement practice and the codification of the proposed call-in power not only affects companies under investigation, but has broader implications for the entire Dutch business community.
We believe that this will have a number of problematic effects:
- Increased compliance costs: companies will have to seek additional and more detailed legal advice as a precaution, even in the case of smaller acquisitions.
- Chilling effect: investors may become more cautious, particularly in sectors where consolidation is a common and often necessary practice, such as technology, healthcare and financial services.
- Damage to the Dutch investment climate: in the longer term, the uncertainty could damage the attractiveness of the Netherlands as an investment location, because it is unclear which acquisitions must be reported to ACM and which need not.
In light of the above, a recent case in Belgium is relevant, in which a similar investigation led to the abandonment of a proposed takeover – even before the outcome of the investigation was known.
More balanced approach
A kind of call-in power for concentrations below the turnover thresholds has already been introduced in a number of European countries. However, that power is often applied more cautiously than the bill currently envisages. In Italy and Sweden, these powers are used only in exceptional cases and always within the framework of a strict legal and economic assessment.
In the Netherlands, there is a risk of ACM adopting a much broader and less restrictive interpretation, which, as stated above, will create considerable uncertainty for market parties.
It is remarkable that ACM stated in a legislative letter of March 2025 that the introduction of a call-in power might be accompanied by an increase in the Dutch turnover threshold from €30 million to €50 million. This would mean that many small concentrations, which do not usually give rise to competition problems, would no longer have to be notified. This consideration is not reflected in the current bill.
ACM itself also recently stated that the bill is too broadly formulated and could potentially affect too many M&A transactions. According to ACM, it would be better to ‘call in’ only transactions in which one company has a turnover of at least €30 million in the Netherlands. This would provide some guidance to the business community.
Recommendations
Various amendments to the MP’s bill are necessary to safeguard legal certainty and at the same time enable effective supervision:
- Clear criteria and guidelines: if the broadening of the Competition Act is indeed implemented, it should include a clear obligation for ACM to publish detailed guidelines on the circumstances in which it will exercise its call-in power. These guidelines could, for instance, provide that ACM may investigate an acquisition below the notification thresholds only if there are “clear indications” of “serious impediments”, while stating when exactly these occur.
- Higher turnover thresholds: in keeping with ACM’s earlier suggestion, the introduction of the call-in power could be accompanied by raising the Dutch turnover threshold to €50 million in order to limit the administrative burden on companies.
- Stronger safeguards: if ACM is indeed given the right to exercise call-in powers, this should be accompanied by stronger safeguards regarding independence, expertise and transparency. This could include the establishment of a separate body, within or outside ACM, to assess or advise within a reasonable period of time as to whether the call-in power may be exercised in a specific case.
- Timely notification: ACM should offer companies the opportunity to determine beforehand whether an acquisition might be problematic, for instance through a voluntary pre-notification process in which ACM is obligated to cooperate. In order to reduce the administrative burden on companies and ACM, it is advisable also in this case to apply clear guidelines and predetermined deadlines.
Conclusion
ACM currently finds itself in a legal grey area in which it appears to be anticipating new powers without a clear legal basis. This is creating legal uncertainty and undermining confidence in the regulator.
In its current form, the proposed ACM Call-In Power Act cannot remove this uncertainty. In light of the far-reaching consequences of this bill, a thorough reconsideration is required. Only with a well-considered and legally sound approach can ACM maintain market confidence and prevent the development of an unnecessarily restrictive and uncertain business climate in the Netherlands.
It is also essential that the legislature address the fundamental question whether ACM is overstepping its remit with its current approach and whether the proposed legislation provides sufficient guarantees for legal certainty and predictability. Until this issue is resolved, companies will continue to face uncertainty about the leeway in mergers and acquisitions. This cannot be the intention of effective market supervision.
Maverick Advocaten has also submitted parts of this blog as a response to the internet consultation on the MP’s bill. This response can be viewed here.
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