Diederik Schrijvershof was asked by De Jurist to comment on the conditional approval by ACM (Netherlands Authority for Consumers & Markets) of Sanoma’s acquisition of Iddink. Sanoma Learning is a publisher of (digital) educational resources and tests via its subsidiary Malmberg. Iddink Group is a distributor of (digital) educational resources and the owner of Magister, an electronic learning environment and student administration system that is popular in secondary education. ACM approved the acquisition on 26 August 2021 for the second time, on identical conditions. De Jurist writes about ACM’s original decision:
“That was a remarkable ruling”, says competition lawyer Diederik Schrijvershof (Maverick Advocaten): “It was the first case related to an acquisition on digital markets in which ACM attached such a range of remedies to its approval.”
ACM’s original decision was successfully challenged by textbook publisher Noordhoff before the Rotterdam Court. The court overturned ACM’s decision on the grounds that it was insufficiently substantiated. ACM therefore conducted a further review of Sanoma’s acquisition of Iddink. ACM’s conclusion is the same as two years ago: ACM does not require the reversal of the acquisition. It has, however, attached conditions to its approval.
ACM furthermore appealed the judgment issued by the Rotterdam Court before the Trade and Industry Appeals Tribunal (CBb), on the grounds that ACM’s original decision was indeed sufficiently substantiated. De Jurist writes about ACM’s reasons for appealing:
"But ACM’s reasons are clearly based primarily on principle and strategy”, says Schrijvershof: “ACM wishes to ensure that the court’s ruling does not create a precedent or become relevant to the requirements that apply to the substantiation of other merger decisions.” But what if the CBb does not rule in favour of ACM but finds that the substantiation of the decision was inadequate? De Jurist writes: “'Then that will have consequences in practice. If the CBb sets the bar higher than ACM for the substantiation of a merger decision, that will strengthen the legal position of companies that are dependent on ACM’s approval of mergers and acquisitions,” says Schrijvershof. The CBb’s decision on appeal will therefore be very relevant to the M&A practice.”
The entire article can be found here.