Notify us of your merger
The Competition Act is based on a system of preventive assessment. This means that NMa must be notified of every concentration which falls within the scope of the Competition Act (the so-called large concentrations) before the concentration is realised, so that NMa can assess it. Until NMa has been notified of the concentration and has assessed it, the realisation of the concentration is prohibited. The procedure set out in the Competition Act for assessing concentrations consists of two phases: the notification phase and the licensing phase.
Notification phase (section 34 et seq.)
Undertakings, which wish to bring about a concentration, must notify NMa of their intention to do so. Within four weeks of receiving the notification, NMa must inform the applicant whether a licence is required for the concentration. If this term lapses without NMa's taking a decision, a licence is not required. During the period in which the notification is assessed, it is prohibited to bring about the concentration.
During the notification phase, NMa investigates whether there is reason to believe that the concentration will result in the emergence or strengthening of a dominant position, as a result of which competition on the Dutch market will be significantly restrained.
If there is no reason to believe that this is the case, NMa must inform the undertaking within four weeks of receiving the notification that a licence is not required for the concentration. The companies involved may then bring about the concentration.
If there is reason to believe that this is the case, NMa must inform the undertakings involved that a licence is required for the concentration. The undertakings involved must then apply for a licence for the concentration.
Licensing phase (section 41 et seq.)
An application for a licence must be submitted to the Director-General of NMa. A decision on the application for a licence must be taken within 13 weeks. During the period in which the application is assessed, the concentration is prohibited. If the period of 13 weeks lapses, without a decision having been taken, the licence is deemed to have been granted.
During the licensing phase, NMa investigates whether the proposed concentration will indeed result in the emergence or strengthening of a dominant position, as a result of which competition on the Dutch market will be significantly obstructed. In order to reach a decision, NMa defines the relevant market and determines the market share of the undertakings involved in the concentration and the market shares of competitors. NMa also investigates, for instance, what opportunities are available to third parties to enter the market and the extent to which buyers and suppliers are dependent on the new company that is to be created.
The licence will not be issued if it appears that the proposed concentration will indeed result in the emergence or strengthening of a dominant position, as a result of which competition on the Dutch market will be significantly restrained. In that case, bringing about the concentration remains prohibited and the concentration must be abandoned. If ultimately there is no evidence of the emergence or strengthening of a dominant position, the licence will be issued and the undertakings involved may bring about the concentration. A licence may be issued subject to limitations and instructions.
Provision of Information by Undertakings
Undertakings, which wish to bring about a concentration to which the Competition Act applies, are required to notify NMa of their intention. In order to reduce the administrative burden on the undertakings as far as possible, the Competition Act is based on a system of notifications and applications for licences. In the notification phase it is only necessary to submit information which makes it possible for NMa to make a quick initial assessment of the concentration. Only if NMa decides that a licence is required, is it necessary to submit more extensive information, which makes it possible for NMa to make a more in-depth assessment. This avoids unnecessary submission of information.
Concentration Notification Form
The notification of a proposed merger must contain comprehensive information on the undertakings involved, turnover data, the nature of the concentration, the market or markets affected by the concentration and the position of the companies involved on these markets, the most important competitors and buyers on this market or these markets, and the agreements which provide evidence of the proposed concentration. A Concentration Notification Form is available from NMa, which must be used to notify NMa of the proposed concentration. The term of four weeks will commence at the moment that NMa receives the notification. If NMa reaches the conclusion during the notification phase that additional information is necessary, it may request the required information from the undertakings involved. In this case, as it were, the 'clock' measuring out the four weeks is stopped until the additional information is received.
Licence Application Form
In the case of an application for a licence, more extensive information must be provided on aspects such as the size and growth of the market or the markets which are affected by the concentration, the structure of supply and demand on these markets, the organisation of production and distribution, production capacity, the most important suppliers of the undertakings involved and the barriers to entry. A Licence Application Form is available from NMa, which must be used in drawing up an application for a licence. The term of thirteen weeks will commence at the moment that NMa receives the application. If NMa reaches the conclusion during the licensing phase that additional information is necessary, it may request the required information from the undertakings involved. In this case, as it were, the 'clock' measuring out the thirteen weeks is stopped until the additional information is received.
If the undertakings involved wish to do so, they may also submit the information required for notification and for the application for a licence at the same time. This saves time as it ensures that the period between the moment at which notice is given that a licence is required and the moment at which the application for a licence is received is as short as possible. This does not mean, however, that the notification phase is skipped in such cases.
Confidential information
Needless to say, confidential business information which NMa receives in the course of this procedure is treated with the utmost confidentiality and is not published. NMa's staff are obliged to maintain the confidentiality of all information which they encounter while carrying out their duties.
Review, Administrative Appeals and Judicial Appeals
If the Director-General of NMa has refused to grant a licence for a concentration, the Minister of Economic Affairs may still grant a licence if, in his opinion, there are important reasons in the public interest which outweigh the expected restraint on competition resulting from the concentration. If the undertakings involved are of the opinion that there are important reasons in the public interest, they may submit an application for a licence to the Minister of Economic Affairs. In this case, the Minister must take a decision within eight weeks.
It is possible to file a judicial appeal with the Court of Rotterdam against a decision by the Director-General in relation to the obligation to apply for a licence for a concentration and in relation to the granting or refusal of a licence. It is not necessary to first submit a notice of administrative appeal to NMa. The Trade and Industry Appeals Tribunal [College van Beroep voor het bedrijfsleven] will rule on the judicial appeal.
In the event of an infringement of the rules in relation to the regulation of concentrations, the Director-General may impose fines, which may be combined with an order subject to a penalty. The affected undertaking may submit a notice of appeal to NMa against such a decision to impose a sanction. If the administrative appeal is not granted or is not granted in full, it is possible to file a judicial appeal with the Court of Rotterdam, with the possibility of a further appeal to the Trade and Industry Appeals Tribunal.
