On March 18, 2025, a legislative proposal was opened for consultation that, if enacted, would enable the Dutch Authority for Consumers and Markets (“ACM”) to “call in” transactions that currently do not meet notification thresholds for merger review.[1] The Proposal follows calls by the ACM for expanded authority and coincides with its first investigation into whether a below-threshold transaction violated antitrust law.
These developments coincide with a broader European trend of national competition authorities asserting control over below-threshold transactions.
Proposed reforms to Dutch merger control
Next to the current revenue thresholds[2] which will remain in place, the Proposal would grant the ACM:
- Expanded review power – The ACM may require the review of below-threshold transactions for review if it suspects that the transaction may significantly impede effective competition on the Dutch market, or a part thereof, particularly by creating or strengthening a dominant position.[3]
Although the Proposal does not prescribe criteria for a “call in”, possible indications would be (1) successive transactions by a single party in local or regional markets, or (2) the acquisition of a nascent competitor by a dominant party for an exceptionally high transaction value.[4] The ACM may issue further guidelines on call-in criteria such as the acquirer’s market shares, the level of market concentration, prior transactions and signals from consumers or interested third parties. The ACM could also designate markets that are prone to a call-in based on its market investigations.[5]
- Four-week window – The ACM must issue a “call in” request for information within four weeks after the earliest of the following events: (1) the publication in the Netherlands of an intention to bring about a transaction by one of the parties involved; (2) the moment that the ACM becomes aware of an intention to bring about a transaction; or (3) six months after the entry into force of an agreement bringing about the transaction.[6]
Upon receiving the requested information, the ACM will have four weeks to decide whether the “call in” criteria are met and, if so, require the parties to submit a merger notification and impose a standstill obligation.[7] The regular merger control procedure will then apply.
- Completed transactions – The ACM can require notification of a completed transaction, but the standstill obligation will not apply. The ACM could ultimately order a completed transaction to be unwound within 13 weeks of its final decision.
The Proposal responds to the ACM’s repeated request[8] for “call in” power to address the failure of current thresholds to capture “roll-up” transactions – which recently occurred in the veterinary and general practitioner sectors – and killer acquisitions.[9] The public consultation is open until April 18, 2025, after which the Proposal will be finalized for discussion in Parliament. The final legislative proposal may also take on board the ACM’s recent suggestion that the call-in power should be combined with higher revenue thresholds (€50 million instead of €30 million) to reduce the administrative burden on companies.[10]
Brink’s / Ziemann
Undeterred by its current lack of “call in” power, the ACM is actively pursuing alternatives to remedy perceived enforcement gaps in Dutch merger control.
On March 7, 2025, the ACM announced an investigation into whether the acquisition by cash-in-transit company Brink’s of the Dutch operations of German rival Ziemann (the “Transaction) infringed competition law, and in particular constituted an abuse of dominance.[11] The Transaction, announced on March 4, 2025, marks the first case in which the ACM has applied antitrust provisions to a below-threshold transaction.[12]
The legal basis of the investigation is unclear:
- The Transaction was not reportable, falling short of Dutch merger control thresholds.
- The Transaction could not be “called in” for review, as the ACM currently lacks such powers.
- Dutch competition law prohibits transactions from being reviewed under the Dutch equivalent of Article 102 TFEU,[13] although this restriction is set to be lifted this year.[14]
- If the Transaction affects trade between Member States, the investigation may instead be based on Article 102 TFEU.[15]
Brink’s/Ziemann is not an isolated incident.[16] Considering the ongoing public consultation, the investigation may involve a strategic element of illustrating why a change of merger control tools is needed.
Part of a wider European trend
Competition authorities around Europe have in recent years pursued similar strategies to review below-threshold transactions through a variety of mechanisms:
- Call-in powers. Various EU Member States currently grant their competition authorities discretionary powers to “call in” below-threshold transactions.[17] These powers differ significantly across Member States, for example due to the various call-in criteria (e.g., whether local turnover is required), the period for the “call in”, and also whether a “call in” triggers a standstill obligation. Many other European competition authorities are currently considering similar proposals.[18] The Commission recently reviewed NVIDIA’s acquisition of Run:ai based on a referral under Article 22 EU Merger Regulation after the transaction was “called in” for review by the Italian Competition Authority.[19]
- Transaction value thresholds. In addition to their regular turnover thresholds, Germany and Austria also have transaction value-based thresholds to capture high-value acquisitions of companies with limited turnover but significant competitive potential.[20] However, these thresholds are not without issues. The Düsseldorf Court of Appeal recently dismissed an overly broad application of the German transaction value threshold for companies operating in mature markets.[21]
- Ex post review. Alongside the Dutch ACM, the Belgian[22] and French[23] competition authorities have also recently relied on Articles 101 and 102 TFEU to review non-notifiable transactions in the wake of Towercast. This raises multiple issues, including significant uncertainty for transactions and a suboptimal procedural framework.[24]
The patchwork of review options across Europe raises significant questions about whether the system is fit for purpose, especially at a time when the Commission seeks to foster growth, innovation, and investment as part of a competitive EU internal market. In line with the recent Illumina judgment,[25] it is essential for merger control regimes to operate in ways that are legally certain, proportionate, and non-discriminatory, while also ensuring an adequate territorial nexus of concentrations that are reviewed and supporting the proper functioning of the internal market. This sentiment was shared by the Draghi Report, which called for the urgent streamlining of “increasingly complex and uncertain merger control practices”, including “the use of Article 22 of the Merger Regulation to cope with non-notifiable mergers […] [and] the application of Article 101 and 102 to review non-notifiable mergers.”[26] Executive Vice-President Ribera has announced that this issue will be reviewed more closely.[27]
Takeaways
This development signals that companies engaging in below-threshold transactions, particularly those involving dominant firms, may face heightened regulatory scrutiny. Businesses should not only carefully assess traditional merger control risks at EU and national level, but also consider the potential for “call in” and ex post investigations. Businesses may consider pro-actively reaching out to authorities to avoid a call-in later in the process.
[1] Legislative proposal (Wetsvoorstel), Wet inroepbevoegdheid ACM, March 18, 2025 (the “Proposal”).
[2] Under the Dutch Competition Act (“DCA”), transactions must be notified to ACM if (1) the combined worldwide turnover of the parties exceeds €150 million; and (2) at least two of the parties each have a turnover of at least €30 million in the Netherlands.
[3] Proposal, article 49(a).
[4] Explanatory Memorandum (Memorie van Toelichting) to Wet inroepbevoegdheid ACM, March 18, 2025, p. 8.
[5] See “The Comeback of Sectoral Investigations: The Dutch and Belgian Competition Authority Announce Probes”, February 20, 2025, Cleary Antitrust Watch.
[6] Proposal, Article 49(a)(2).
[7] Proposal, Article 49(b).
[8] See Martijn Snoep, blog post, November 7, 2024, “Updating Competition Enforcement”; see further Martijn Snoep, blog post, November 6, 2023, “Small mergers, big programs”.
[9] Roll-up acquisitions occur when the same party successively acquires multiple smaller competitors in the same market, where these transaction are not reportable but their combination significantly impacts competition in that market. Killer acquisitionsinvolve a large or even dominant company acquiring an emerging, innovate competitor with a view of eliminating future competition.
[10] ACM, Wetgevingsbrief 2025, March 17, 2025.
[11] ACM, press release of March 7, 2025, “ACM launches investigation into acquisition of cash-in-transit company Ziemann by rival company Brink’s” (“ACM Press Release”).
[12] The ACM is particularly concerned that the exit of Ziemann will lead to a loss of competition in an already concentrated cash-in-transit market in the Netherlands, in which Brink’s is “by far” the largest player. While its investigation will seek to establish whether the acquisition violates competition rules more broadly, the ACM is focused on whether the Transaction abuses Brink’s dominant position; see ACM Press Release.
[13] Article 24(2) DCA expressly holds that concentration cannot constitute an abuse of dominance.
[14] The Dutch Senate is currently reviewing this proposal, following its approval by Dutch Parliament on January 30, 2025; see Kamer dossier 36.588.
[15] In line with the ECJ’s judgment in Towercast which confirmed the possibility of post-closing review of non-reportable transaction under Article 102 TFEU; see,Towercast v Autorité de la concurrence (Case C-449/21), EU:C:2023:207; and “Towercast: EU Court of Justice Endorses Post-Closing Review of Concentrations”, April 11, 2023, Cleary Alert Memorandum; Snoep previously acknowledged that Towercast only applies where national law permits; see Martijn Snoep, blog post, March 8, 2023, “’Plugging gaps’ in Antitrust Enforcement”.
[16] In a recent decision that a transaction did not require notification as it fell below the notification thresholds the ACM noted that general antitrust provisions continue to apply. See ACM, Niet toepasselijkheid concentratietoezicht melding Valstar – EFP, February 26, 2025.
[17] These include Denmark, Hungary, Ireland, Italy, Latvia, Lithuania, Slovenia, and Sweden.
[18] Other than the Netherlands, competition authorities in Belgium, the Czech Republic, Finland, and Greece have publicly expressed their desire to obtain such powers. The French competition authority recently undertook a public consultation on the introduction of a merger control framework for addressing below-threshold mergers likely to harm competition, including – amongst other options – a call-in mechanism; see Autorité de la concurrence press release of January 14, 2025.
[19] The transaction was approved on December 20, 2024. An appeal is currently pending.
[20] These thresholds aim to capture mergers in innovative sectors, such as digital and pharmaceuticals, where revenues alone may not fully reflect a nascent target’s market power, innovation potential, or competitive significance.
[21] See “German Court Confirms Narrow Scope of Transaction Value Threshold in Merger Control”, March 3, 2025, Cleary Antitrust Watch.
[22] The Belgian Competition Authority has recently relied on antitrust rules to review two proposed transactions. In both cases, the parties abandoned the transaction. See Dossche Mills/Ceres,BCA decision n°13/2025 (based on article 101 TFEU and the Belgian equivalent); and Proximus/EDPnet, BCA decision no. n°51/2023 (based on Article 102 TFEU and the Belgian equivalent).
[23] In May 2024, the French Competition Authority (“FCA”) closed its ex officio investigation under Article 101 TFEU of potential geographic allocation of the French meat-cutting market through 21 cross-divestitures of business assets in 2015. These transactions were not reportable. The FCA found no overall market sharing plan independent of the transactions; see FCA decision no. 24-D-05; and “First Move by the French Competition Authority to Analyze Non-Reportable Mergers under Article 101”, May 21, 2024, Cleary Alert Memorandum.
[24] BCA prosecutor general Damien Gerard recently commented that the application of Towercast involves adversarial proceedings, including the imposition of sanctions and infringement decisions, creating “friction” between enforcers and merging parties. See Global Competition Review, March 12, 2025, “Belgian enforcer renews call for tougher deal review powers”.
[25] Illumina v. Commission (Case C‑611/22 P and C‑625/22 P), judgment of September 3, 2024, EU:C:2024:677, ¶¶ 150, 185, 201, 205-218.
[26] Mario Draghi, report of September 9, 2024, “The future of European competitiveness”, Part B, page 304, footnote 9, available at https://commission.europa.eu/topics/eu-competitiveness/draghi-report_en#paragraph_47059.
[27] Teresa Ribera, speech of March 4, 2025 at CEPS Ideas Lab, available at www.youtube.com/watch?v=6k7LaEqABEg.