However, this provision’s Dutch counterpart – Article 24 of the Competition Act (Mededingingswet) – explicitly excluded its application to concentrations. At the time, the legislature considered it inappropriate that concentrations falling below the supervision thresholds (below-threshold concentrations) could still be reviewed under Article 24 of the Competition Act. This exclusion has been scrapped with effect from 1 September 2025. As a result, Article 24 of the Competition Act now aligns with the current interpretation of Article 102 TFEU and can also be used to review below-threshold concentrations.
The amendment reinforces the tools available to the Netherlands Authority for Consumers and Markets (ACM) to investigate below-threshold concentrations. The Towercast judgment already established that the ACM could do so under Article 102 TFEU (and probably also Article 101 TFEU). The ACM has been using this option in its investigation of Brink’s’ acquisition of Ziemann. However, EU competition rules only apply if the conduct in question has cross-border effect. Article 24 of the Competition Act (like the cartel prohibition of Article 6 of that Act) does not set this requirement. Now that Article 24 of the Competition Act has been amended, the ACM can also use this provision to review below-threshold concentrations that do not have cross-border effect but only impact the Netherlands, either wholly or partly.
However, this is not to say that the ACM now has an easy means to review below-threshold concentrations. The European Court of Justice previously ruled (in the Continental Can judgment) that the mere finding that an undertaking’s position has been strengthened is not sufficient for a finding of abuse. This suggests a higher burden of proof than that required under concentration supervision.
This development reflects a broader EU trend to nevertheless review below-threshold concentrations. In a previous News Update, we discussed the bill giving the ACM the power to take concentration supervision measures against certain below-threshold concentrations: the ‘ACM Call-In Power Act’ (Wet inroepbevoegdheid ACM). This Act will render any future measures under Article 24 and/or Article 6 of the Competition Act unnecessary (and highly undesirable).
