Neodyum Miknatis
Casino Siteleri
canli poker siteleri meritslot
escort antalya
istanbul escort
sirinevler escort
antalya eskort bayan
Short Reads

What to expect when you are expecting: broader investment screening in the Netherlands

What to expect when you are expecting: broader investment screening

What to expect when you are expecting: broader investment screening in the Netherlands

01.10.2020 NL law

On 8 September 2020, a draft bill setting up an ex-ante and ex-post screening mechanism for investments in companies active in vital processes or sensitive technology in the Netherlands was published for consultation. Investments, mergers and acquisitions that took place between 2 June 2020 and the entry into force of the proposed law may also be scrutinised. The draft bill is open for consultation until 7 October 2020. Companies should beware of these new developments in relation to future, and potentially past, M&A deals.

In creating a system for screening investments or other changes of control or influence in the Netherlands, the draft bill complements the existing sectoral regimes. Sectoral regimes currently cover the gas and electricity sector and the telecommunications sector, for which the new law entered into force on 1 October 2020 [see our newsletter of June 2020]. The draft bill serves to ensure investments that are not covered by the sectoral regimes, but which may pose a risk to national security, will also be screened.

The draft bill introduces an ex-ante and ex-post notification requirement for investments and other M&A activities that lead to a change of control or influence in companies with seat in the Netherlands and which are essential for the continuity and resilience of vital processes, active in the field of sensitive technology, have control or significant influence over such companies or are a supplier of companies active in vital processes. A separate order will specify exactly which activities are covered by the new rules.

The draft bill applies to all types of “investment activities” (such as takeovers, mergers, joint ventures and the acquisition of assets with which effective control or, in exceptional circumstances, a significant influence is acquired e.g. by means of a minority stake or preferred stock). The rules apply equally to non-EU and EU investors, including Dutch investors.

Standstill obligation

An intended investment activity will need to be notified to the Minister of Economic Affairs and Climate by one of the parties subject to the notification obligation (the acquirer or target) and clearance will need to be awaited before it can be implemented.

The review period

The Minister’s review period lasts up to eight weeks, with a possible extension of maximum six months if further investigation is needed. This period may be extended even further if – for example at a relatively late stage – the EU FDI Screening mechanism is activated. During the review period, the Minister will look into aspects including: (i) the (transparency of) the ownership structure and relationships of the acquirer, (ii) whether the acquirer is subject to restrictive measures under international law (such as international sanctions) and (iii) the security situation in the acquirer’s country of residence.

The review process ends with the Minister either (i) clearing the intended activity, (ii) imposing measures to its clearance decision to safeguard national security by, for instance, prohibiting the inclusion in the transaction of certain assets, components or subsidiaries, lowering the allowed percentage of shares to be acquired or requiring certification of all shares of the acquirer or (iii) as a last resort prohibiting the activity all together. A screening decision may be appealed.

In very exceptional circumstances, an initially-approved investment activity may become subject to conditions or be reversed. If the (changed) circumstances could pose a threat to national security, the Minister may order a new notification to be made and may take a new screening decision.

Failure to notify, incorrect or incomplete information or failure to comply

In case of a failure to notify, the Minister may order a notification to be made or impose an administrative fine with a maximum of 10% of the turnover of the undertaking concerned. The provision of incorrect or incomplete information may lead to a new notification being ordered and an administrative or criminal fine. Failure to comply with the measures imposed can lead to further measures being imposed, a prohibition (and reversal) of the investment activity or administrative or criminal fines. Executing an investment activity in spite of a prohibition decision renders the legal acts null and void. Investigative powers include issuing requests for information and conducting dawn raids.

Retroactive effect

The bill will have retroactive effect, meaning that all investment activities from the 2 June 2020 to the moment of entry into force of the bill also fall within its scope. Not all investment activities will have to be notified; only those involving a reasonable suspicion that an investment activity that took place in the time period could pose a risk to national security. In this case the parties involved are required to notify the activity, which will lead to an assessment decision.


This upcoming bill introduces an ex-ante and ex-post screening regime with far-reaching consequences. Companies are advised to keep this upcoming bill in mind when contemplating future M&A deals, as well as to check their earlier investments in preparation of the bill’s retroactive effect from 2 June 2020.


This article was published in the Competition Newsletter of October 2020. Other articles in this newsletter:


Related news

07.01.2021 NL law
Commission evaluates Antitrust Damages Directive: to be continued

Short Reads - On 14 December 2020, the Commission published a report on the implementation of the Antitrust Damages Directive (the Directive). The Commission observes a significant increase in antitrust damages actions since the adoption of the Directive. However, there is insufficient experience with the new Directive to properly evaluate its application. Instead, the Commission provides a concise overview of the implementation of some key aspects of the Directive.

Read more

07.01.2021 NL law
Amsterdam District Court puts a halt to unlimited forum shopping

Short Reads - On 25 November 2020, the Amsterdam District Court (the Court) declined jurisdiction over all non-Dutch defendants (the foreign defendants) in proceedings for compensation of damage based partly on an infringement of Article 101 TFEU. The proceedings were initiated by four public utility companies from the Gulf States (claimants) against both Dutch and foreign defendants.

Read more

07.01.2021 NL law
ACM study calls for regulation of Big Techs on payment market

Short Reads - The ACM’s market study, published on 1 December 2020, provides an overview of recent and upcoming developments concerning the role of Big Tech companies in both online and offline payment markets in the Netherlands. Although Big Tech companies currently have a relatively limited presence in these markets, the ACM expects significant expansion in the near future given these companies’ ability to leverage existing market power on other (platform) markets.

Read more

07.01.2021 NL law
Do the math: ACM publishes strategy on monitoring use algorithms

Short Reads - The ACM worries that the use of algorithms may lead to the creation of cartels, or nudge consumers towards a purchasing decision that is not in their best interest. Therefore, on 10 December 2020, it published a new policy document (in Dutch) setting out what businesses can expect when the ACM checks their algorithms. On the same day, the ACM also launched a trial with online music library Muziekweb to improve the ACM’s knowledge about the categories of data that are likely to be relevant in such investigations. All signs indicate the ACM’s intention to become more active in this area.

Read more

07.01.2021 NL law
(Geo)blockbuster: Canal+ ruling annuls commitment decision

Short Reads - A heads-up for companies seeking to settle in antitrust proceedings: commercially-affected third party complainants are not to be ignored. The Canal+ judgment marks the first time a commitment decision has been successfully challenged since the adoption of Regulation 1/2003. The European Court of Justice annulled the commitment decision on the ground that the Commission failed to take into account the rights of contractual parties affected by the commitments.

Read more