ACM call-in power: what parties negotiating Dutch deals need to know

Recently, the Dutch Parliament introduced a draft legislative act (the Act) that would grant the Netherlands Authority for Consumers and Markets (ACM) the long-awaited call-in power over below-threshold transactions. Over the past weeks, Parliament has voted on a series of amendments and motions to the draft Act, culminating in the overall proposal which was approved yesterday. However, entry into force is unlikely before the first half of 2027 at the earliest, not least because the Act must still pass through the Senate, and, under one of the adopted motions, the Act cannot come into force until the ACM has held a public consultation on a draft version of its implementation guidance. The call-in power itself will only become operational once the ACM has finalised the guidance and put an informal-views mechanism in place.

We reported on the original draft Act in March 2025 (see our previous blog). Below we provide a recap of the “call-in option” set out in our last blog, as well as an overview of the changes that have occurred since then.

To recap: what will the call-in power look like?

The draft Act proposes to insert a new set of provisions into the Dutch Competition Act (DCA), Articles 49a–49e, which essentially comprise the following:

• The ACM may send requests for information to companies to determine whether a concentration could result in a significant impediment to effective competition in the Netherlands;

• Any such request must be made within four weeks of the earlier of: (i) the moment one of the parties has publicly announced the concentration in the Netherlands; (ii) the moment the ACM otherwise becomes aware of it; or (iii) six months after the agreement giving effect to the concentration takes effect;

• If the ACM believes a concentration could result in a significant impediment to effective competition, it can require the parties to notify the concentration, triggering the standstill obligation; and

• The normal ACM review procedure then applies (including a Phase 1 and potential Phase 2 procedure).

What has changed since our last blog?

Three amendments were adopted on 8 September:

• The asymmetric threshold for the call-in power has increased from €30 million to €50 million of Dutch turnover of one of the parties involved, and can henceforth be adjusted by administrative order. This threshold is expected to be met by many acquirers in sectors where roll-up strategies are an ACM concern, including childcare and veterinary practices; 

• The general, mandatory notification threshold is increased from €30 million to €75 million; and

• Anyone, including consumers and businesses, will be able to report a suspected concentration to the ACM if they believe it could significantly impede competition on the Dutch market, or part of it. This is aimed primarily at bringing concentrations in niche or local markets to the ACM’s attention, i.e. deals that may not be visible at a national level but which could still have a significant effect on competition and consumers within that specific market. 

Two motions were also adopted on 8 September:

• The Act will not enter into force until the ACM has published a draft guidance document for public consultation, and the consultation has been completed, giving businesses and other stakeholders the opportunity to comment on how the guidance will work in practice; and

• One year after the Act’s entry into force, the ACM must evaluate whether the call-in power is effectively preventing objectionable market concentrations and is not having unforeseen consequences for businesses.

A separate amendment to limit the call-in power to sectors specifically designated by administrative order, rather than applying it across the economy, was rejected.

A post-closing look-back

Once the ACM has requested and received all the information it needs, it must decide within four weeks whether to call in the concentration, although it can stop this clock by requesting further information or documents. Only a decision to call in the transaction triggers the notification obligation and the accompanying standstill obligation; neither applies during the earlier period in which the ACM’s information request (RFI) is still outstanding, meaning a transaction can, in principle, be closed while an RFI is pending. Doing so, however, carries a real risk. By the time the ACM reaches its decision, the businesses may already have been integrated, so if the ACM were then to call in the transaction and ultimately prohibit it, the parties could be required to unwind the transaction, with far-reaching consequences for the merged entity. 

Parties can manage this risk by voluntarily submitting a briefing paper to the ACM, similar to jurisdictions which have voluntary notification thresholds (such as the UK) or already have active call-in powers. By proactively and voluntarily informing the ACM of a proposed transaction before closing, parties trigger the “ACM becomes aware” limb, rather than leaving the transaction exposed to the six-month, post-closing call-in window. The need to adopt a more pro-active approach in relation to more sensitive transactions, is reinforced by one of the adopted amendments, under which any third party can report a suspected concentration to the ACM, aimed at deals that might otherwise pass unnoticed. The explanatory memorandum identifies two distinct ways to engage with the ACM. First, a simple online form will allow parties to flag a proposed transaction early on and obtain a quick indication of whether it may be called in. Second, parties can continue to use the ACM’s existing informal views procedure (informele zienswijze) and pre-notification process, neither of which is subject to a statutory deadline. These routes allow for a fuller presentation of the transaction, affected markets and competitive assessment, more akin to a genuine briefing paper. The practical takeaway is that parties should consider which route matches the transaction’s complexity and sensitivity. 

The draft Act deliberately does not set out fixed criteria for when a transaction will be called in, notwithstanding the acknowledged risk of legal uncertainty. Instead, this will be assessed on a case-by-case basis and addressed through the ACM’s forthcoming guidance. It is likely that in practice, companies will often take a cautious approach and be overinclusive when deciding which transactions to highlight to the ACM, just to remove the uncertainty.

By its nature, the call-in power will introduce additional uncertainty, since parties can no longer rely on the notification thresholds alone. During the consultation on the draft Act, stakeholders repeatedly raised this concern, arguing that businesses cannot sufficiently assess in advance whether a transaction will be subject to ACM review, risking a chilling effect on transactions. This is no different from the uncertainty and risks that exist in certain other jurisdictions with similar call-in powers, as well as those that apply voluntary merger control regimes such as the UK. While proactive ACM engagement addresses this uncertainty, it naturally carries the risk of flagging a transaction that the ACM might otherwise not have noticed, and some parties may be concerned that proactively flagging a transaction will be seen as an acknowledgement that the transaction is sensitive from a merger control perspective. Parties will therefore need to weigh the certainty this brings against the risk of inviting scrutiny that might otherwise not arise.

Fewer mandatory notifications

Raising the general notification threshold to €75 million will materially reduce the number of mandatory notifications, freeing up the ACM capacity for transactions more likely to raise genuine competition concerns. The Minister of Economic Affairs expects the number of mandatory notifications to fall from around 130 to around 40 per year once the general threshold rises from €30 million to €75 million. The ACM itself expects to invoke its new call-in power in five to ten cases per year. The ACM has indicated that due to the significant reduction in mandatory filings, it does not need additional staff in order to effectively apply and enforce the new call-in power.

Implications 

Parties should start factoring ACM call-in risk into deal planning already at the signing stage, even for acquisitions of targets with little or – in exceptional cases – no turnover in the Netherlands. This includes considering whether to engage proactively with the ACM, building in appropriate conditions precedent, and reflecting call-in risk in the determination of the long-stop date. Even when parties conclude their transaction should not raise competition issues, they may still want to inform the ACM to avoid a call-in at an inconvenient moment (e.g. after signing or even after closing). This could also be relevant for deals currently being negotiated.