Attention dealmakers! As of September 2025, Article 24(2) of the Dutch Competition Act (DCA) has been repealed. This provides the Netherlands Authority for Consumers and Markets (ACM) with a new power: it can now retrospectively (ex post) investigate whether a transaction by parties with market power constitutes an abuse of their dominant position—even if these transactions fall below the notification thresholds of the Dutch merger control regime.
Merger Control in the Netherlands
The ACM is the competent body for merger control in the Netherlands. Transactions must be notified to the ACM if the parties involved reach certain turnover thresholds. Companies active outside the Netherlands may also have notification obligations elsewhere. For example, transactions between parties with high(er) turnover in multiple member states of the European Union must be notified to the European Commission. For transactions that fall below the turnover thresholds, the ACM investigates whether they have harmful effects on competition in the Netherlands.
Acquisition as Abuse of Dominant Position
Until early 2025, the ACM did not investigate whether a transaction violated the prohibition on the abuse of a dominant position (Article 24(1) DCA). This has changed since the Towercast ruling and the repeal of Article 24(2) DCA.
In the Towercast ruling, the Court of Justice of the European Union determined that national competition authorities such as the ACM can assess concentrations—regardless of notification obligations—for abuse of a dominant position under Article 102 Treaty on the Functioning of the European Union (TFEU). Following the ruling, the ACM initiated an investigation into Brink’s acquisition of Ziemann, including potential violation of the prohibition on the abuse of a dominant position. Brink is globally active in the cash transport sector, while Ziemann is one of the active players in the Netherlands. Article 102 TFEU however only applies if there is a cross-border effect.
Article 24 DCA applies when there is no cross-border effect, but there is a restriction of competition in the Netherlands. Article 24(2) DCA was repealed as of September 2025. This article previously stipulated that establishing a concentration—regardless of whether it fell under the notification obligation—could not be considered an abuse of a dominant position.
In practice, this means that the ACM can now retrospectively investigate transactions as to whether they amount to an abuse of a dominant position, even if they have no cross-border effect (Article 102 TFEU) and even if they fall below the notification thresholds.
Expansion of ACM’s Supervisory Powers
The repeal of this article fits into the broader trend of competition authorities, including the ACM, to bring potentially harmful concentrations under supervision. See, for example, our earlier blog about so-called killer acquisitions. The ACM has also long advocated for a ‘call-in power’ that would give it the authority to bring transactions it deems problematic under its supervision within a certain timeframe through this power, even if they were not initially subject to notification. The legislative amendment for this power is now pending in parliament.
Questions?
The change particularly affects companies with market power that acquire (smaller) competitors. They would be well advised to assess in advance whether their acquisition could potentially lead to a violation of the prohibition on abuse of a dominant position or the cartel prohibition.
SOLV regularly advises clients on transactions and assists clients in notification procedures before the ACM or the European Commission. For questions, you can contact Kim van Haastrecht or Jelle van den Biggelaar.
