In our Competition Outlook 2025, we predicted that national competition authorities would increasingly search for ways to investigate concentrations that fall below the turnover thresholds. The Netherlands is aiming to emulate the United Kingdom and Denmark, which have already implemented this 'call-in' power. The power enables competition authorities to review smaller acquisitions even if they fall below the turnover thresholds and fall outside the authorities' jurisdiction. Martijn Snoep, Chairman of the Netherlands Authority for Consumers and Markets ("ACM"), has repeatedly expressed his wish to introduce this call-in power in the Netherlands as well (see, for example, Martijn Snoep blog: Small mergers, big problems and Martijn Snoep speech: De loep waarmee ACM naar private equity kijkt (in Dutch)). The bill for the ACM Call-In Power Act (Wet inroepbevoegdheid ACM) brings the ACM a step closer to exercising this power in the Netherlands. It was therefore published and offered for online consultation on 18 March 2025.

Bill: ACM Call-In Power Act

In the Netherlands, concentration supervision is laid down in the Competition Act (Mededingingswet) (in Dutch). The Competition Act requires parties to notify proposed concentrations to the ACM if the turnover thresholds are met. This will be the case when the companies involved together generate an annual worldwide turnover of more than €150 million and when at least two of the companies involved each individually generate an annual turnover of €30 million in the Netherlands. Concentrations on a European scale must be notified to the European Commission.

The two Members of Parliament who submitted the bill for the ACM Call-In Power Act state in the Explanatory Memorandum (in Dutch) that in recent years regulators and other experts have increasingly come to realise that relatively small concentrations can equally distort competition. This happens particularly when a company pursues a 'roll-up strategy', acquiring several small companies within the same sector, stringing them together like beads and transforming them into one big entity. 'Killer acquisitions', in which a large company acquires small innovative players with the aim of foreclosing future competition, can also adversely affect competition. To prevent companies from thus evading competition authority oversight and obtaining or strengthening a dominant position, the ACM Call-In Power Act seeks to introduce a 'call-in' power to allow the ACM to assess (as an exception) below-threshold concentrations.

The bill introduces five new articles to supplement the current Competition Act (specifically Articles 49a-49e). Importantly, Article 49a(1) of the Competition Act will allow the ACM to request information from a company that it reasonably considers necessary to assess whether a below-threshold concentration may significantly impede competition in the Dutch market or in any part of it. The ACM must use this power within four weeks of the earliest of the following events:

• when the proposed concentration is made public in the Netherlands,
• when the ACM becomes aware of the proposed concentration, or
• six months after the signing of the transaction documents by which the concentration takes effect (Article 49a(2) of the Competition Act).
  
  

If the ACM has reason to assume that the concentration could significantly impede effective competition in the Dutch market or in any part of it, it will require the companies involved, under Article 49b(1) of the Competition Act, to notify the concentration to the ACM. Effecting the concentration is then prohibited until four weeks have passed. The ACM will impose this requirement within four weeks of the end of the reasonable period that it has given the parties to provide the information requested (Article 49b(2) of the Competition Act). The procedure is similar to the one used by the Commission in the past, before its call-in power was held to be invalid by the European Court of Justice.

To remove any uncertainties for businesses, the companies involved must be clearly informed in a timely fashion whether the proposed concentration can go ahead. The Explanatory Memorandum emphasises that the ACM should steer clear as much as possible from prohibiting concentrations that have already been set in motion or have been completed. However, it is impossible to determine in advance whether competition in the Dutch market or in any part of it will be significantly impeded, as this can only be assessed on a case-by-case basis. This is a major source of uncertainty for parties, but the ACM can provide more clarity in the future by, for example, drawing up policy rules.

Citizens and companies have until 18 April 2025 to submit their views through an online consultation (in Dutch). The bill will also be submitted to the Council of State for advice, after which the Minister of Economic Affairs can present his views in a further report. After that, the bill will be submitted to the Dutch House of Representatives and the parliamentary process will commence. It is still unclear when exactly the Act, if passed, will enter into force.

Proposed call-in power aligns with the ACM's ambition to counter 'roll-up strategies'

The proposed call-in power aligns seamlessly with the ACM's broader ambition to counter 'killer acquisitions' and 'roll-up strategies', meeting its desire to review these types of concentrations. A recent example of a roll-up strategy assessed by the ACM is Foresco's acquisition of DWP and Vierhouten (see summary of the decision of 20 February 2025).

Over the past few years, Foresco has become the market leader by a series of smaller acquisitions. In the period from 2019 to today, 17 acquisitions took place in the Netherlands, only 4 of which had to be notified to the ACM. The other acquisitions fell below the turnover thresholds. The proposed acquisition of DWP and Vierhouten was part of its strategy of 'serial acquisitions' (or 'roll-up strategy'), according to the ACM. A licence was required for the acquisition, prompting the ACM to assess an acquisition in the context of a roll-up strategy for the first time. In its assessment, the ACM looked at the impact of the proposed acquisition, the effects of previous acquisitions (including those that were not notified) and the effects of future acquisitions that are sufficiently concrete.

The ACM adopted a neutral position towards 'roll-up strategies' in its decision. While this strategy can have positive effects in some cases, a series of smaller acquisitions can impede competition just as significantly as a single, major acquisition that does exceed the turnover thresholds. This is because this type of acquisition can create a dominant position, strengthen an existing dominant position, or enable a future dominant position.

However, the ACM's investigation did not reveal any indications that the proposed acquisition of DWP and Vierhouten would significantly restrict competition, as it would not create or strengthen a dominant position. The ACM's decision particularly signals how the authority will assess 'roll-up strategies'.

Addressing concentrations under the prohibition on abuse of a dominant position

In the Towercast judgment of 16 March 2023, the European Court of Justice confirmed that concentrations not subject to a notification requirement can be reviewed by national competition authorities under certain circumstances. Where these concentrations can constitute a dominant position, Article 102 of the Treaty on the Functioning of the European Union ("TFEU") can be applied to concentrations that do not meet the national turnover thresholds. However, this requires all conditions of Article 102 TFEU to be met, which is not easy to establish. The Competition Act provides that a national concentration cannot be considered an abuse of a dominant position. The ACM circumvents this by relying on Article 102 TFEU, which does not include a similar exception.

The ACM is currently investigating Brink's' acquisition of the Dutch branch of the German company Ziemann, which also falls below the turnover thresholds (see the ACM's publication of 7 March 2025). This is the first 'Towercast case' in the Netherlands. Both Ziemann and Brink's operate in the cash-in-transit market, a sector about which the ACM has had concerns for a while now due to the high level of market concentration. Brink's is part of a group that is active worldwide and is, by far, the largest cash-in-transit company in the Netherlands. Ziemann will leave the Dutch market as a result of the acquisition, which will further strengthen Brink's' position. The ACM is investigating whether this acquisition violates the competition rules. The investigation will reveal whether or not the competition rules have indeed been violated.

The impact of these investigations into acquisitions not subject to a notification requirement remains to be seen. However, we have observed that in two Belgian cases (most recently on 20 March 2025, see the press release), similar investigations led the parties involved to ultimately abandon the proposed transaction.

Outlook

The bill would give the ACM its much-desired power to review concentrations that could significantly restrict competition but now fall outside the reach of concentration supervision. Many other EU Member States have already introduced a similar power. In a 'legislative letter', the ACM stated that the introduction of this power could be accompanied by an increase in the Dutch turnover threshold from €30 million to €50 million. Many small concentrations, which usually do not raise any competition issues, would not have to be notified in that case. Unfortunately, the bill does not include anything to that effect.

The ACM's intervention under Article 102 TFEU shows that the authority does not intend to sit idle in the meantime. This does have its drawbacks. For companies, it entails unpredictability, while the procedures for enforcing Article 102 TFEU are far from optimal for concentration reviews. The signal this is sending to companies is that they should carefully assess whether a concentration – even if it does not have to be notified – could cause competition issues. If this is likely, proactively engaging with the ACM will be worthy of serious consideration. That way, unpleasant surprises can be avoided. This may be especially important in sectors where concentration levels are already a cause of concern for the ACM.