NMa Netherlands Competition Authority

Concentrations are a merger of two or more companies, an acquisition, or a joint venture insofar that joint venture will be active on the market as an independent firm. Concentrations must be notified of with the NMa if they exceed a turnover threshold. That threshold is reached if the companies involved have a combined global turnover of more than €113,450,000 and if at least two of those companies each have a turnover in the Netherlands of at least €30 million. If the companies are part of a holding, the holding’s turnover will count towards that threshold.

Since January 1, 2008, the concentrations thresholds for health care providers have been lowered. The turnover thresholds are: combined global turnover of €55 million, and at least two providers must each have a turnover in the Netherlands of €10 million.
There are exceptions to what the NMa considers concentrations. The following are not considered concentrations:

• Temporary control by a financial institution;
• Control by receivers in case of bankruptcy or a moratorium, or control in accordance with the Dutch Act on Financial Oversight (WFT)
• Control by holding companies, provided that voting rights are exercised for investments objectives only
  

If the turnover threshold of the participating companies is exceeded, the NMa must be notified of the concentration plans in advance. If the NMa is notified thereof afterwards, it could impose a fine. Costs of notification of concentration are €15,000.

Within four weeks after the notification has been received, the NMa is required to announce whether a license is needed. The concentration cannot be completed within that 4-week period. If we need additional information, we will request the parties to provide us that information, and we will ‘pause the countdown’ until we have received that information. If we fail to issue a decision within four weeks, no license is required.

In those four weeks, we look into the concentration’s effects on competition. If competition is not impeded by the concentration, we inform the companies in question they do not need a license. If we believe that the concentration will affect competition, and, as a consequence, we wish to further investigate the concentration, the companies in question are then required to officially apply for a license or they can put forward solutions to the identified problems. If their proposed solutions take away the NMa’s concerns, no license is required. License applications cost €30,000.

If a license is required for a concentration to go through, a new time period of 13 weeks commences. The NMa must issue a decision within that period of 13 weeks whether the concentration is actually granted a license. We have the power in this phase too to demand additional information, and to stop the countdown until we have received that information. The concentration cannot be completed during the licensing phase. If the NMa fails to issue a license decision within 13 weeks, the concentration can go through as planned.

In those 13 weeks, we investigate the concentration’s effects on the market. We look at the positions of competitors, the independence of suppliers and buyers, and the opportunities for other companies to become active in the market.

If competition will be jeopardized, the concentration is refused a license. This is considered a ‘significant impediment to effective competition’. In that case, the concentration must be called off. If competition will not be affected, we will grant the companies a license, and the concentration can go through. Certain restrictions and instructions can be attached to a license.

Sometimes there are so-called ‘overriding reasons of general interest’ that outweigh the concentration’s impeding effect. In such cases, the Minister of Economic Affairs, Agriculture and Innovation can still grant a license. The companies in question should then resubmit a license application with the ministry. The Minister issues a decision within eight weeks.

NMa decisions in which a license is granted or not can be appealed. The companies in question themselves can appeal, but buyers and competitors can do so, too. No objection needs to be filed with the NMa, but the license decision can be directly appealed with the District Court of Rotterdam. If necessary, further appeal is possible with the Dutch Trade and Industry Appeals Tribunal (CBb).

Please use the ‘Notification and license application form’ to notify the NMa of a planned concentration. The following document explains in detail the notification procedure.

• Notifying of a concentration

• Best practices on Cooperation between EU National Competition Authorities in Merger Review
• Notifying of concentrations
• Study into anticipatory response to concentration control (in Dutch)
• Dutch concentration control practice held up as an example in recent study by the International Competition Network (in Dutch/English)
• Issuance of short-form decisions in respect of concentration cases
• Best practices on the conduct of concentration control proceedings