The Netherlands Authority for Consumers and Markets (ACM) will soon also be able to retrospectively investigate non-notifiable M&A transactions for abuse of dominance. This is due to a recent amendment to the Mededingingswet (Competition Act).
This means that ACM may assess also smaller mergers or acquisitions that fall below the notification thresholds if the acquirer has a dominant position. This new power creates uncertainty in particular for non-notifiable M&A transactions in which an acquirer with a large market share acquires a (small) target in the same sector(s).
In this blog, we address the consequences of this legislative amendment for M&A practice and provide some practical tips.
What are the implications of this legislative amendment?
The Competition Act (Article 24(1)) prohibits the abuse of a dominant position. This provision has existed for decades, but was never applied to mergers or acquisitions (“concentrations”). Article 24(2) of the Competition Act currently still expressly states that bringing about a concentration cannot constitute abuse, regardless of whether the acquisition is subject to notification. This restriction (paragraph 2) of the prohibition of abuse (Article 24 of the Dutch Competition Act) will now be removed by the legislative amendment. This means that acquisitions that do not require notification – because they remain below the turnover thresholds in Article 29 the Competition Act – can now be sanctioned retrospectively by ACM as abuse of dominance by the acquirer.
The legislative amendment was adopted on 10 June 2025 and will enter into force by royal decree on a date yet to be determined. This is merely a formality and is expected to take place in the near future.
The reason for the legislative amendment is the Towercast judgment of the Court of Justice of the European Union (the “CJEU”). In that judgment, the CJEU ruled that national competition authorities may apply the European-law prohibition of abuse (Article 102 TFEU) to transactions that fall below the notification thresholds, provided that the transaction has not been referred to the European Commission (see also this blog).
When can a merger or acquisition constitute abuse of a dominant position?
For a concentration to constitute abuse, the acquirer must have a dominant position. This is the case if an undertaking can act to an appreciable extent independently of competitors, customers and end users. As a rule of thumb, there is a rebuttable presumption of a dominant position if the market share exceeds 50% of the relevant market(s) in which the company operates. At a market share of 40-50%, additional evidence is required. Below a 40% market share, dominance is unlikely. However, the market share is only a starting point for the dominance analysis; it is not necessarily decisive.
A company’s market share depends on how the relevant market is defined. The broader the relevant market, the smaller the market share tends to be. On the other hand, a narrow market definition may in fact be beneficial if it means that the acquirer and the target operate in different markets. The market definition always comprises (a) the product market (the relevant products and/or services offered) and (b) the geographic market (the relevant area within which the suppliers compete). The acquirer will therefore need to gain a good impression of the competitive situation in its market(s) to assess whether it has a dominant position.
Not every acquisition by a dominant party necessarily constitutes abuse. Under the ‘regular’ concentration test (Article 41(2) of the Competition Act), a concentration is prohibited if it would significantly impede effective competition, in particular by creating or strengthening a dominant position. More is required to conclude that an acquisition by a dominant acquirer is abusive, since it follows from the Towercast judgment that merely strengthening a dominant position does not suffice. It must be demonstrated that the “the degree of dominance thus reached would substantially impede competition, that is to say, that only undertakings whose behaviour depends on the dominant undertaking would remain in the market.” ACM will therefore not be able to sanction just any acquisition by an acquirer with a large market share as an abuse of dominance.
How will ACM handle its new power?
The consequences of the legislative amendment are potentially far-reaching, regardless of what ACM will do if it establishes an abuse of dominance (impose a fine or have the transaction reversed?).
The mere fact that ACM launches an abuse investigation may already be disastrous for the transaction, regardless of the outcome of that investigation. Two recent cases in Belgium are illustrative in that context:
- Telecom provider Proximus acquired the much smaller telecom provider EDPnet. The transaction fell below national notification thresholds, but the Belgian competition authority (“BMA”) launched an investigation into possible abuse by Proximus after closing. Proximus did not await the final outcome of this investigation: soon after the investigation started, it resold EDPnet to another party. The BMA discontinued its abuse investigation that same day.
- In the flour sector, the non-notifiable partial acquisition of Ceres by Dossche Mills early this year prompted the BMA to launch an antitrust investigation (also based on the Towercast judgment). Again, the parties did not await the outcome of the investigation: they announced in March 2025 that they were abandoning the transaction, after which the BMA announced the closure of the cartel investigation.
ACM itself has not been sitting by idly either. It recently launched its first (Towercast-inspired) investigation into a non-notifiable transaction in the cash-in-transit sector. ACM is concerned about Brink’s acquisition of Ziemann because of a potential breach of competition rules, including the (European-law) prohibition of abuse of a dominant position. To date, it is unclear what impact this investigation will have on the transaction.
It stands to reason that – pending the granting of the call-in power fervently advocated by ACM – ACM will launch similar investigations more often as a result of the legislative amendment; all the more so in light of ACM’s continued focus on tightening its merger supervision in order to counter what it regards as undesirable market consolidation. Read our blog on the call-in power here.
Tips
The above examples demonstrate that businesses with a dominant position should be alert to the risk of ACM also investigating smaller, non-notifiable acquisitions for possible abuse. Parties with a strong market position that wish to acquire a competitor (or potential competitor) are therefore well advised first to identify the possible consequences of the transaction. Four tips:
- Check whether the acquirer has or may have a dominant position. Consult a competition specialist if in doubt about the correct market definition or the degree of market power.
- In the event of potential dominance, work out various scenarios as if the transaction will be assessed by ACM (what is plan B if ACM has concerns?).
- If necessary, adjust the transaction beforehand in consultation with transaction lawyers. Consider a carve-out or the partial resale of the target (up-front remedies) or work out behavioural remedies beforehand.
- Identify strategic options beforehand and in good time: this includes the question whether any stakeholders (including customers) need to be informed beforehand and, for instance, whether or not it is desirable to proactively inform ACM about the upcoming transaction and discuss it with them.
