The European Commission and the ACM (Netherlands Authority for Consumers and Markets) supervise mergers, acquisitions and joint ventures. Transactions that exceed certain turnover thresholds must be notified for approval beforehand. This system has its disadvantages. Since 1 January 2014 the European Commission has in any event broadened the scope of its simplified procedure to review unproblematic transactions. The simplified procedure now applies to competitors with a market share of less than 20% (previously 15%) and to companies that operate on (vertically) related markets with a market share of less than 30% (previously 25%). The simplified procedure will now also apply to transactions that result in only a minimum increase in market share. Also, the information that the parties involved must provide has been limited and the pre-notification process has been further streamlined. The ACM is expected to follow suit and to simplify its procedure too. It will most likely be possible soon to send notifications to the ACM in a digital form. The first experiences in this regard at the Dutch Healthcare Authority (NZa) have in any event been positive.
A more controversial issue is the European Commission’s intention to also have the merger control procedure apply to the acquisition of a non-controlling minority interest. The European Commission thereby departs from the current principle that only the acquisition of sole control (such as a takeover) or joint control (such as a joint venture) falls under European merger control. The direct reason for this measure of the European Commission is the minority interest that airline provider Ryanair previously acquired in its competitor Aer Lingus and that did not fall under the supervision of the European Commission. Non-controlling minority interests can also restrict competition, for instance when a company acquires a financial interest in a competitor. The company may then lose the incentive to continue to keenly compete with that competitor or may even be induced to coordinate its market conduct with that competitor. This year it will become apparent whether and, if so, how merger control will be changed on this point.
Since 1 January 2014 the merger control of the Dutch healthcare sector was expanded with a specific merger test. A healthcare provider is now required to notify a proposed concentration (merger, acquisition or joint venture) to the NZa. Such notification is obligatory if at least one of the parties involved is a healthcare provider that employs at least 50 persons. The NZa will approve the concentration if it is established that the purpose and consequences of the concentration have been carefully considered, all the stakeholders (clients, staff, insurers and municipalities) have been closely involved and acute care is not at risk. If the concentration also meets the turnover thresholds that apply to notifications to the ACM, the concentration must (subsequently) be notified to the ACM.
