1.  Summary

Below-threshold mergers and acquisitions are no longer beyond the reach of competition law enforcement in the Netherlands. Since 1 September 2025, the ACM (Dutch Competition Authority) is no longer barred from invoking the equivalent of Article 102 TFEU, Article 24 of the Dutch Competition Act (DCA), to intervene against abuse of dominance in transactions below the notification thresholds (in line with the so-called Towercast caselaw). In addition, a draft bill currently before Parliament proposes to introduce a call-in power, which would allow the ACM to review below merger control thresholds transactions. The proposal has, however, drawn criticism and its final scope remains uncertain.

2. Background

Article 24 DCA mirrors Article 102 TFEU, which prohibits abuse of dominance. Yet, when the Dutch Competition Act entered into force in 1998, it expressly excluded mergers and acquisitions from the scope of Article 24 DCA. The rationale was that concentrations should be assessed solely under the merger control regime: transactions above the turnover thresholds required notification, while those below were considered competitively irrelevant.[1]

That premise is no longer considered tenable. The Dutch legislator acknowledges that even below-threshold transactions may harm competition, for instance through killer acquisitions (early takeovers of innovative entrants) or creeping acquisitions (a series of small deals that cumulatively increase market power).[2] In highly innovative or concentrated markets, such deals can have a substantial impact.

3. Towercast judgment and amendment of Article 24 DCA 

The immediate trigger for the legislative change was the Towercast judgment.[3] The Court confirmed that national competition authorities may apply Article 102 TFEU to transactions falling below the notification thresholds, provided no EU dimension exists and the case has not been referred to the Commission.[4] Whilst in most EU member states this meant a revival of the pre-merger control Continental Can case law, it exposed an inconsistency between EU and Dutch competition law: the ACM should be able to act under Article 102 TFEU but was explicitly forbidden to do so under national competition law. 

To address this, as of 1 September 2025, paragraph 2 of Article 24 DCA, which stated that “the creation of a concentration shall not constitute an abuse of a dominant position”, has been repealed. This amendment removes the exception for concentrations, thereby aligning Dutch law with EU competition rules and expanding the ACM’s powers to review smaller transactions that previously fell outside its scope.

4. New practice under Article 24 DCA

Following the amendment and in line with the Towercast judgment, the ACM may now assess below-threshold acquisitions under the prohibition of abuse of dominance. In practice, this allows intervention where an undertaking that already holds a dominant position uses an acquisition in a manner that amounts to abuse by materially weakening the competitive structure. The applicable standard derives from the Continental Can case law, which requires a demonstrable erosion of the market structure, rather than a mere increase in market share.[5]

The mechanism remains ex post: the ACM can only intervene on the basis of Article 102 TFEU or 24 DCA once a transaction has been completed. This makes enforcement complex and renders unwinding transactions uncertain and costly.[6] Importantly, ex post intervention does not necessarily require the unwinding of a transaction. The ACM may also rely on alternative measures, such as imposing behavioural remedies, fines or orders subject to periodic penalty payments. The ACM has already indicated its readiness to exercise this new competence: on 7 March 2025, it announced an investigation, inspired by the Towercast judgment, into Brink’s proposed acquisition of Ziemann on suspicion of abuse of dominance.[7] Even at this early stage, before any decision is taken, such an investigation can create significant uncertainty and reputational harm and may even lead parties to abandon the transaction.[8]

While Article 24 DCA now provides an ex post merger review instrument, policymakers are also exploring whether the ACM should be given an ex ante tool to address such risks more directly.

5. ACM Call-in Power Act proposal and the Council of State’s advice

The Dutch parliament is currently considering the draft ACM Call-in Power Act. The proposal would equip the ACM with an ex ante instrument, allowing it to review below-threshold transactions preventively on a discretionary basis. The ACM could request information and, where there are indications of a significant impediment to competition, impose a notification obligation.[9] Pending review, the implementation of the transaction would be suspended. The call-in power could only be exercised where at least one of the parties generates €30 million in Dutch turnover.[10] According to the explanatory memorandum, the proposal is intended to strengthen the ACM’s ability to address harmful concentrations at an earlier stage and thereby offer greater legal certainty compared to ex post intervention.[11]

The Council of State has, however, expressed criticism of the proposal.[12] In its advice of 1 October 2025, it noted that the justification for such a broad power is insufficiently substantiated: while the proposal is motivated by concerns in specific sectors such as general practitioner care, veterinary services and childcare, its scope extends to all sectors. This, the Council warned, could result in a disproportionately wide-ranging competence. It also cautioned that the measure may increase legal uncertainty and administrative burdens, as companies might opt to notify transactions pre-emptively out of caution.

The Council further observed that the case for introducing an additional ex ante call-in power is weakened by the fact that the ACM already has two mechanisms at its disposal: regular merger control above the notification thresholds, and since the repeal of Article 24(2) DCA, the ability to intervene ex post against below-threshold acquisitions that amount to abuse of dominance. Contrary to the explanatory memorandum to the draft Call-in Power Act, the Council emphasised that such ex post enforcement does not necessarily require the unwinding of a transaction: the ACM can also impose behavioural remedies, fines or orders subject to periodic penalty payments. 

The Council also highlighted that the healthcare sector already has a sector-specific merger control regime under the NZa (Dutch Healthcare Authority), which is in the process of being strengthened, and considered the explanatory memorandum unconvincing as to why this existing instrument would not suffice. Finally, it advised that the substantive assessment criteria should, as far as possible, be enshrined in the law itself rather than left to ACM policy guidelines, in order to ensure predictability and legal certainty.

6. Implications for businesses

The repeal of Article 24(2) DCA already has direct consequences: smaller transactions that previously fell outside the scope of review can now be assessed ex post under Article 24 DCA (as well as under Article 102 TFEU) and, where necessary, unwound or remedied. In addition, the draft ACM Call-in Power Act could introduce a discretionary layer of merger control by empowering the ACM to block or impose conditions on certain transactions.

Taken together, these developments would reflect a shift towards closer scrutiny of below-threshold concentrations. Businesses would be well advised to take both developments into account when planning deals in the Dutch market and to engage with the ACM where appropriate.

This article was written with assistance from Alba Dewit.

If you need more information or further guidance in this area, please contact Pauline Kuipers.

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