On 18 March 2025, two Members of the Dutch Parliament issued a legislative proposal (initiatiefwet) granting the Dutch Authority Consumers and Markets (ACM) the competence to call in transactions below the turnover threshold. Under the proposal, the call-in power would generally apply to any transaction that could, according to the ACM, result in a significant impediment to competition. The legislative proposal is subject to public consultation until 18 April 2025. Parliamentary deliberations will commence following the conclusion of the public consultation and a review of the proposal by the Council of State. The adoption process will therefore still take months to complete.
This legislative proposal follows consistent calls by the ACM Chairman Martijn Snoep advocating for the introduction of a call-in power. The Dutch Minister of Economic Affairs was already deliberating an amendment to the Dutch Competition Act. The two Members of Parliament, however, decided not to await a legislative proposal by the Minister of Economic Affairs, but to submit their own proposal. The legislative proposal does not (yet) propose to raise the general turnover threshold for the acquirer and target from EUR 30 million to EUR 50 million turnover in the Netherlands, as has been proposed by the ACM Chairman.
This legislative proposal follows the initiation of an investigation on 7 March by the ACM into an acquisition that fell below Dutch merger control thresholds under the abuse of dominance rules. This move is notable given that the Dutch Competition Act explicitly provides that concluding a concentration does not constitute an abuse of dominance.
Furthermore, in the ACM’s substantive assessment of the notifiable (above-threshold) transaction by pallet producer Foresco, the ACM took into account the cumulative effect on competition of earlier and subsequent non-notifiable acquisitions, ultimately approving the transaction. This was the first time that the ACM assessed a notified transaction within the context of a broader roll-up strategy, considering both previous non-notifiable transactions and sufficiently concrete future transactions.
The legislative proposal and the actions by the ACM align with broader international trends. Competition authorities across the world have grown increasingly concerned about anti-competitive effects of below-threshold transactions. These concerns notably focus on killer acquisitions in tech and biotech markets, and roll-up strategies or “serial acquisitions”, including customary “buy-and-build strategies” by private equity funds. Risks of call-ins and abuse of dominance investigations should therefore be carefully assessed when considering concluding transactions or roll-up strategies.
Please reach out to us if you have any questions or would like to further discuss how this legislative proposal may impact your business.
