Relevant legislation

On 1 October 2007, a revised Dutch Competition Act (the “revised Act”) entered into force. The revised Act provides for the following changes with regard to merger control in the Netherlands:

• Substantive test: The “dominance” test for concentrations has been altered to follow the reworded “significant impediment of competition” assessment in European Community (EC) Regulation No. 139/2004. The Dutch Competition Authority, NMa, will focus on the economic reality of each case and efficiencies will be considered.

• Joint ventures: Under the revised Act all full-function joint ventures are dealt with under the merger control provisions. Before the entry into force of the revised Act, full-function “co-operative” joint ventures were not considered under merger control rules but rather under the cartel rules, a practice that was in line with the EC merger control rules as they applied until March 1998.

• Remedies: The revised Act provides the NMa with the power to grant conditional clearance (i.e. with remedies) in phase I decisions, in line with EC Regulation No. 139/2004. Prior to the revised Act, it was not possible for the NMa formally to impose conditions in relation to a phase I clearance decision. Merging parties in practice worked round this by restructuring their transaction following pre-notification discussions or during phase I.

• Related transactions: The revised Act expressly provides the NMa with the authority to assess legally or economically related transactions as part of the same concentration; this was already the case in practice. […]