The Dutch House of Representatives (‘Tweede Kamer’) has approved legislation (‘Wet inroepbevoegdheid ACM’, 36.774) that would give the Netherlands Authority for Consumers and Markets (ACM) the power to review and potentially prohibit certain mergers and acquisitions that fall below the existing Dutch merger control turnover thresholds. The proposal is part of a broader effort to strengthen the ACM’s enforcement toolkit1 and enable it to review transactions that may raise competition concerns despite falling below the standard Dutch merger control thresholds.
Background: Current Dutch Merger Control Framework
Under the current Dutch merger control regime, a concentration generally must be notified to the ACM where, in the last calendar year prior to the transaction, the undertakings concerned2 generated a combined worldwide turnover of EUR 150 million or more and at least two of the undertakings concerned each generated a turnover of EUR 30 million or more in the Netherlands. Transactions below those thresholds do not require prior notification. This approach provides predictability for businesses, but it may also leave certain strategically important acquisitions outside the ACM’s review. In particular, turnover may not fully reflect the competitive value of an innovative business, technology platform, data asset or early-stage company. These concerns have arisen in relation to so-called “killer acquisitions,” in which an established company acquires a potential future competitor before that business has developed substantial turnover or other market presence. Additionally, the legislative reform is expected to capture a so-called “string of deals” strategy by investment firms, meaning sequential acquisitions of relatively small competitors.
Proposed ACM Review Mechanism
The proposed legislation would empower the ACM to review certain transactions that do not meet the ordinary Dutch merger control thresholds. Current proposals suggest that the authority may be able to call in a transaction where at least one of the undertakings concerned has a substantial presence in the Netherlands corresponding to a turnover in the Netherlands of € 50 million or more, even if the statutory notification thresholds are otherwise not met. It is expected that the ACM will publish guidelines as to which below-thresholds transactions are likely to receive regulatory scrutiny.
The expectation is that the ACM will have four weeks to make a request to review a transaction following the earliest of three possible dates: the date on which the merger is publicly announced; the date on which the ACM becomes aware of the intention to implement the merger; or six months after the agreement implementing the merger takes effect. Following review, the ACM may require remedies, and a transaction could ultimately require unwinding.
The legislation is not expected to have retroactive effect, meaning that transactions closed prior to the entry into effect of the legislation likely would not be subject to review under the new below-threshold review mechanism.
At the same time, the Dutch turnover threshold is expected to increase from EUR 30 million to EUR 75 million for the undertakings concerned. As a result, fewer transactions would be subject to mandatory notification under the ordinary merger control regime. The proposed reforms therefore reflect a more targeted approach to merger control: while routine transactions would face a reduced filing burden, the ACM would retain the ability to investigate below-threshold acquisitions that may nevertheless raise competition concerns.
Experiences in Other Jurisdictions
Similar powers of intervention already exist in various other European Union Member States (e.g., Denmark, Hungary, Ireland, Italy, Latvia, Lithuania, Slovenia, and Sweden), as well as in non-European countries (e.g., the United States). In addition, countries such as Belgium, France, and Finland are reportedly also considering introducing a call-in power.
Article 22 of the EU Merger Regulation allows national competition authorities to ask the EU Commission to review below-threshold mergers, but the EU Court of Justice ruled in the Illumina/Grail case that the EU Commission cannot accept these referrals unless the referring EU Member State already has direct jurisdiction under its own national laws.
The key takeaway for Italy is that below-threshold merger control is no longer a niche tool aimed exclusively at innovative or high-tech transactions. The Italian Competition Authority (AGCM) has made clear that it is prepared to use its call-in powers across a wide range of sectors whenever a transaction may raise concrete competition concerns. Parties involved in transactions that fall below the ordinary notification thresholds should therefore assess at an early stage whether the AGCM may nonetheless intervene, particularly in concentrated markets or where the target exerts a significant competitive constraint. Since the introduction of the regime in 2022, the AGCM has exercised its call-in powers in approximately 10 cases a year (seven in 2024, two of which were concluded with commitments).
The U.S. experience shows that challenges to deals that are not reportable under the Hart-Scott-Rodino (HSR) Antitrust Improvements Act (and usually already closed) are rare, amounting to about one per year. They usually occur as a result of a market participant – customer or competitor – complaining to the regulators, or a press release by a serial acquirer. These tend to occur in particularly sensitive areas – healthcare and critical technology. Typically, when the U.S. agencies (Department of Justice Antitrust Division or Federal Trade Commission) settle with the merger parties with a remedy to solve for a problematic transaction that was HSR reportable, the settlement contains a requirement that the parties provide prior notice to the FTC (a light form of an HSR filing) for future acquisitions in the relevant market, even when not HSR reportable.
Implications for Transactions / Financial Sponsors Executing Buy and Build Strategies
The Dutch reform could increase uncertainty in transaction planning and in executing buy and build strategies. Under the existing framework, parties can usually determine at an early stage whether a transaction or a series of transactions will require notification by applying the turnover thresholds. If the proposed mechanism is introduced, parties may also need to consider whether a transaction could attract attention despite falling below those thresholds (e.g., as a result of a complaint, company press release, mention in the specialized press, or, more generally, monitoring by the ACM).
Subject to the ACM’s guidelines that are expected to be forthcoming, this is especially relevant for financial sponsors executing a buy and build strategy. Financial sponsors may therefore wish to assess competition risks earlier, including where no mandatory filings are expected.
The possibility of regulatory intervention after the fact will affect transaction documentation and may affect deal timetables. Parties may also need to consider doing a substantive merger assessment (e.g., in the case of relatively higher estimated market shares and/or where the target undertaking exerts a significant current or expected future competitive constraint) and whether proactive engagement with the ACM is appropriate.
Next Steps
The legislation introducing the ACM’s call-in power was approved by a broad majority in the Dutch House of Representatives on 22 September 2026 and must now be considered by the Dutch Senate (‘Eerste Kamer’). If adopted, the reform would introduce a more targeted merger control regime in which fewer transactions require mandatory notification, while the ACM retains the ability to review selected below-threshold transactions that may raise competition concerns.
1 The ACM has been lobbying for a so-called “New Competition Tool” with an aim to remedying structural market failure.
2 Typically, the target undertaking and the acquirer’s group in the case of an acquisition of sole control.
*Special thanks to Corporate Intern Yasmin Homan˘ for contributing to this GT Alert.
˘Not admitted to the practice of law.