The Netherlands Authority for Consumers and Markets (ACM) can now review completed M&A transactions for abuse of dominance, including below-threshold transactions previously exempt from scrutiny, due to an amendment to the Dutch Competition Act. This change increases oversight of deals involving major companies.

Effective 1 September 2025, the Dutch Competition Act was revised to eliminate Article 24(2), which had previously stipulated that mergers and acquisitions could not be deemed as abuse of dominance and were only subject to ACM review under merger control provisions. The recent amendment now authorizes the ACM to apply national abuse of dominance rules to such transactions. Consequently, M&A activities that once fell below notification thresholds and were not required to be reported may now be subject to review and potential sanctions by the ACM, provided that at least one of the parties involved is at risk of being found dominant.

The amendment, put forward in January 2025, is a direct response to the European Court of Justice's 2023 judgment in Towercast, in which it affirmed the authority of national competition authorities to apply abuse of dominance rules to merger cases. For more details, see our briefing on the Towercast judgment. The judgment presented challenges for the ACM because, under the Dutch Competition Act, the implementation of a concentration was not regarded as an abuse of a dominant position. Because of its unique position, the Dutch Government was one of just three Member States – along with Italy and France – to provide input before the Towercast judgment, raising concerns about legal certainty.

NEW POWERS OR CONFIRMATION OF EXISTING ONES?

Despite the initial reservations and concerns expressed in the submissions leading up to the Towercast judgment, the ACM proceeded to rely on it as a legal foundation for examining whether a transaction may contravene EU competition law concerning abuse of dominance. On 7 March 2025, the ACM announced the commencement of an investigation into Brink’s acquisition of Ziemann, a cash-in-transit company, noting that the transaction did not meet the standard notification requirements. The investigation commenced under the previous Dutch legal framework, which formally restricted the ACM from initiating an abuse of dominance inquiry in relation to mergers. However, the ACM evidently interpreted the Towercast judgment as establishing a basis under EU law, likely due to a combination of the supremacy of EU law and the Member States' duty of consistent interpretation. Consequently, although the amendment to the Dutch Competition Act is significant, it primarily serves to harmonise Dutch law with EU requirements, as stated in the act proposing the change.

In addition to its powers to review transactions for compliance with abuse of dominance rules, the ACM has long had the authority to investigate potential violations of the prohibition against anti-competitive agreements. Its French counterpart exercised similar powers to review a transaction involving the cross-divestiture of business assets among three companies in the meat sector and ultimately did not raise objections to the deal.

The amendment to the Dutch competition act does not grant new powers to the ACM for investigating transactions or remedying abuse of dominance if found. The ACM will, however, be able to leverage the enforcement toolkit under the current legal framework to impose fines of up to 10% of the global turnover of the infringing undertaking, to order behavioural remedies backed by periodic penalty payments, and to impose structural remedies, including divestitures.

ENHANCED DUE DILIGENCE RECOMMENDED FOR CERTAIN TRANSACTIONS

Companies with substantial market positions acquiring smaller entities with a Dutch nexus may be more likely to fall below the Dutch notification thresholds, increasing their exposure to recent regulatory changes. Such transactions may necessitate enhanced risk assessment and the use of tailored risk allocation mechanisms in SPAs. A finding of abuse is not necessary for a transaction to be significantly impacted. The initiation of a review alone can extend the process beyond the longstop date, while the possibility of unwinding or fines may impact the commercial viability of the deal. This dynamic is illustrated by two transactions – Proximus/EDPnet and Ceres/Dossche Mills – that were abandoned following similar investigations by the ACM’s Belgian counterpart.

LOOKING AHEAD

Additional amendments to Dutch merger control are expected, including a proposal currently on the docket which seeks to grant the ACM the power to review below-threshold deals that may significantly impede competition in the Netherlands, even if no party is dominant. For more details on the proposals, see our briefing on the ACM's call-in powers. If enacted, the call-in power will enhance the ACM’s toolkit, enabling it to address longstanding concerns regarding roll-up strategies and killer acquisitions, as well as to review specific transactions retrospectively. We continue to monitor developments and inform you of implications for your business and planned investments.