Dutch competition regulator's call-in power passes "first phase" as lower house adopts bill

Competition authorities around the world are closing loopholes and asserting jurisdiction over potentially harmful mergers that fall below quantitative merger-control thresholds. Activities that give them cause for concern include anti-competitive effects in local markets, roll-up strategies, killing potential competition, and the stifling of future innovation. Authorities are increasingly taking the view that an undertaking's revenue size does not necessarily reflect its position and importance in competitive market dynamics.

The Netherlands Authority for Consumers & Markets (ACM) has also been advocating for such call-in powers. A member of parliament has picked up this call and proposed a bill (see our previous article on the draft bill here). 

Legislative process so far

In its advice on this bill, the Council of State questioned the necessity of this call-in power, suggesting that existing tools can be tailored to address sector-specific challenges. The Council argued that the stated reason for introducing the bill only related to problems identified in three sectors: veterinary practices, daycare centres and general practitioners, whereas the call-in power is not sector-specific. Moreover, as a fallback option, the Dutch prohibition of abuse of a dominant position already extends to takeovers by a dominant undertaking that can be characterised as prohibited abuse, based on the Towercast doctrine of the European Court of Justice. The ACM has already demonstrated this by using the prohibition to scrutinise the ongoing Brink's case (see our previous analysis of that case here).

Despite the Council of State's criticism, the Dutch House of Representatives adopted the bill on 22 September 2026, after amending the initial proposal. These amendments (a) increase the existing general individual notification threshold for mergers, and (b) introduce an asymmetric threshold which has to be passed before the ACM can call-in a merger. In our view, this may significantly change the merger control regime in the Netherlands. Rather than using its call-in power only in exceptional cases, such as roll-up strategies or killer acquisitions, the ACM may consider applying the call-in power in other below-threshold transactions, too. There may therefore be more instances where parties to a transaction will prefer to go through a consultation process with the ACM to obtain clearance on an informal basis.

Individual threshold raised from EUR 30 to EUR 75 million

During the legislative process on this bill, which amends the Dutch Competition Act, the House of Representatives also amended the general individual notification threshold for merger control. Currently, a merger must be notified to the ACM when at least two of the undertakings concerned have each realised EUR 30 million Dutch turnover in the year preceding the merger and have jointly realised a worldwide turnover of EUR 150 million. 

The adopted bill increases the individual threshold from EUR 30 million to EUR 75 million. According to the Minister of Economic Affairs, the change will significantly reduce mandatory notifications to the ACM, from 130 to 40 annually. This will free up ACM officials to work on cases involving the ACM's call-in power and potentially other cases, such as market investigations as a prelude to a possible "new competition tool" that the ACM has been advocating for. Such a new competition tool would enable the ACM to regulate markets that, in its view, do not function properly (see the positive stance of the Dutch government on the latter, here).

Call-in power threshold for "below-threshold" mergers

Although the call-in power applies to below-threshold mergers, the bill provides for an asymmetric threshold before the ACM can use its call-in power. This threshold has been introduced to avoid placing a greater administrative burden on small and medium-sized enterprises (SMEs) acquiring another SME. 

One of the parties (generally the buyer) will have to meet a Dutch turnover threshold of EUR 50 million. The other party (generally the target) does not have to meet any threshold. The worldwide turnover threshold of EUR 150 million for all parties to the merger, which applies as a second threshold and has to be met under the general notification regime, does not have to be met at all for the call-in power to be invoked. The introduction of an asymmetric threshold means that if neither party meets the Dutch turnover threshold of EUR 50 million, the ACM cannot use the call-in power. The threshold can be changed by general administrative order (a decision by the Minister of Economic Affairs). This allows the threshold to be adjusted for future economic developments, including inflation, without the need for a legislative amendment each time.

Call-in power for ACM in two-step procedure

The adopted bill proposes introducing the following call-in power for mergers that do not meet the turnover thresholds under the Dutch Competition Act: 

• The ACM must first send a request for information (RFI) to the parties concerned, asking for details and documents that it reasonably needs to assess if the below-threshold merger is likely to significantly impede effective competition (SIEC test) in the Dutch market or in a part of it. 
• Based on this information, if the ACM concludes that the merger may meet the SIEC test – especially, by creating or strengthening a dominant position – the ACM can call in the merger.  

If the ACM takes that decision, it will impose the following obligations on the undertakings involved in the merger:

• Notification: an obligation to notify the merger to the ACM (by the regular form CO); and
• Standstill obligation: a prohibition on implementing the merger unless the transaction was already completed before the ACM's decision (so either during the initial RFI period or even before). If the parties breach the standstill obligation, the ACM may impose a gun-jumping fine.

Timing of call-in procedure and standstill obligation

The ACM can send an RFI within four weeks of the following dates, whichever comes first: 

• When one of the undertakings involved in the merger publicly announces the intended merger;
• When the ACM becomes aware of the intention to implement the merger (for example, parties can voluntarily disclose the transaction to the ACM);
• Six months after the agreement implementing the merger enters into force. 

After receiving all necessary information, the ACM must decide within four weeks whether to call in the merger, although it can still stop the clock by requesting additional information or documents. Only the call-in decision can trigger the notification and standstill obligations. The standstill obligation does not apply during the initial period in which the ACM has issued an RFI. During this initial period, the parties can complete the transaction, but at the risk of the ACM calling in the transaction and deciding against it, which triggers the obligation to undo the transaction. After the call-in decision, the normal notification regime applies.

What next?

The adopted bill will now pass on to the "second phase" of the legislative process, where it will be submitted to the Dutch Senate. If the Senate also adopts the bill, it will become an act. More than 80% of the House of Representatives voted in favour of the bill. The political parties that these majority voters belong to represent 70% of the Senate. So, we can expect approval in the "second phase" too.

As to entry into force, the bill states that the call-in power will only become effective after the ACM has drawn up guidelines and set up the possibility of requesting an informal opinion in specific cases. The House of Representatives wants the ACM to submit the draft guideline for public consultation and finalise this consultation before the new rules take effect. This enables undertakings and other stakeholders to respond to its practical implementation in advance.