Taking initiative: ACM catches transaction ahead of new powers

Background

According to the ACM, the acquisition of Ziemann by Brink’s required further investigation due to potential competition concerns arising from Brink’s’ market position in the cash-in-transit market, which has a limited number of players. Since the acquisition did not trigger the national merger notification thresholds, the ACM resorted to the antitrust rules, including the prohibition against abusing a dominant position, to review the transaction (a possibility clarified by the European Court of Justice in the Towercast ruling; see our April 2023 newsletter).

First timer

Although this is the first time the ACM has used the Towercast route to review a below-threshold transaction under the antitrust rules, it is not the first national competition authority to do so. The Belgian Competition Authority has used it twice before: it launched investigations into the takeover of EDPnet by telecommunications operator Proximus and the acquisition of Ceres' artisanal bakery activities by Dossche Mills under the antitrust rules (see our July 2024 newsletter). The French Competition Authority has also used it before to examine a transaction in the meat-cutting sector. 

In their review, the Belgian and French competition authorities both relied on a parallel application of the EU and national antitrust rules. Interestingly, the ACM can rely only on the EU abuse of dominance rule in its review of the Brink’s/Ziemann transaction, since the Dutch Competition Act currently blocks the application of the national abuse of dominance prohibition to concentrations. A bill is pending to remedy this discrepancy.

If the ACM, after further investigation, finds that the Brink’s/Ziemann transaction constitutes an abuse of a dominant position, the possible consequences remain unclear. Advocate General Kokott suggested that the imposition of a fine would be more appropriate in this context than the reversal of the concentration. However, the European Court of Justice has remained silent on this point (see our April 2023 newsletter). The French and Belgian investigations are similarly inconclusive: the French case was dismissed and the two Belgian transactions were abandoned, resulting in the closure of the investigations (see here and here).

Diverting non-notifiable transactions from the Towercast route to the merger control regime by introducing a call-in power for the ACM may therefore provide greater clarity to M&A parties, at least on this point. Additionally, it would enable the ACM to more effectively review roll-up strategies and killer acquisitions than is currently the case (see our February 2025 and December 2024 newsletters).

New call-in power ahead

The Minister of Economic Affairs considered the possibility of a call-in power in a letter to Dutch Parliament in October 2024 already. In the same letter, he announced that the various options for supplementing the ACM’s powers to address non-notifiable concentrations would be presented by spring 2025. 

However, two members of the Dutch Parliament beat the Minister to the punch. In March 2025, a consultation was published on a legislative proposal by these two MPs that would give the ACM a more robust procedural framework than the current Towercast route to investigate non-notifiable concentrations that may cause competitive harm. 

The legislative proposal would enable the ACM to request information from the parties involved in non-notifiable concentrations to determine whether the transaction may significantly impede effective competition in the Dutch market or a part of it. 

This request for information must be made within four weeks of the earliest of the following dates:

• the public announcement of the intended concentration by one of the parties involved;
• the moment at which the ACM becomes aware of the parties’ intention to implement the concentration; or
• six months after the date on which the agreement effecting the concentration comes into force.

If, based on this information, the ACM finds that the concentration may significantly impede effective competition, it may require the parties involved to notify the concentration. At the same time, a standstill obligation will apply to the concentrations that have not yet been implemented at that time. Both these obligations must be imposed within four weeks from the date of receipt of the information. No standstill obligation can be imposed on concentrations that have been implemented prior to the ACM’s notification obligation. However, they may ultimately have to be unwound if the ACM opposes them. 

Freeing up capacity

In contrast to the legislative proposal, the letter from the Minister of Economic Affairs mentions the possibility of raising the merger notification thresholds together with a possible call-in power for the ACM. This combination appears to be preferred by the ACM.

In its 2025 legislative letter, the ACM suggests raising one of the merger notification thresholds from EUR 30 million to EUR 50 million in turnover to be achieved in the Netherlands by each of at least two of the parties involved in the concentration. According to the ACM, raising this turnover threshold would reduce the average number of notifications from 130 to approximately 75 per year. Combined with a call-in power, this would free up the ACM’s capacity, allowing it to focus more effectively on potentially problematic concentrations.

Conclusion

Companies involved in M&A transactions should be aware that the ACM has taken several initiatives to tackle potentially harmful below-threshold concentrations. These concentrations may still be subject to review, either through the Towercast route or via a roll-up strategy merger assessment. 

A call-in power for the ACM seems increasingly likely. If introduced, it will not resolve the uncertainty for M&A parties as to when and whether a below-threshold concentration will be called in. However, it may increase predictability by reducing the ACM’s appetite for initiatives. In addition, the ACM may in due course provide further guidance on the criteria for calling in below-threshold concentrations.

For the time being, companies should be aware that their non-notifiable transactions may still be caught. Careful consideration of their competitive impact is therefore essential.