Competition: ACM to assess abuse of dominant position in concentrations below turnover thresholds

The ACM's supervision of competition is laid down in the Competition Act and consists of three pillars. The pillars of the prohibition of cartels (Section 6 of the Competition Act) and abuse of economic dominance (Section 24 of the Competition Act) consist of retrospective supervision and give the ACM the power to impose orders subject to a penalty and fines in the event of a violation of the prohibitions. The third pillar, merger control, consists of ex ante supervision, which requires the companies involved in the proposed merger to first complete a notification process with the ACM. Approval by the ACM is then a necessary condition precedent, as high fines are imposed for completing the merger without such approval. This concerns concentrations that exceed the turnover thresholds set out in Section 29 of the Competition Act. If the ACM issues a statement of no objection, or if the four-week period after notification expires without objection from the ACM, the concentration may be implemented. If further investigation by the ACM is necessary, the ACM may determine that a license must be applied for and the concentration may only be implemented after the license has been granted, with or without conditions. Under the Competition Act, there was no room for the ACM to investigate abuse of economic power in a concentration below the turnover thresholds of Article 29. But that has now changed.

On 16 March 2023, the European Court of Justice ruled in the Towercast case that a national competition authority such as the ACM may assess a concentration that remains below the turnover thresholds applicable in a Member State against Article 102 of the Treaty on the Functioning of the European Union (TFEU). That article prohibits the abuse of a dominant economic position. This judgment removes the previous uncertainty: the ACM may therefore assess whether there is an abuse of a dominant economic position in the case of a concentration that remains below the turnover thresholds of Article 29 of the Competition Act. To have a dominant position, the market position is important, both in the relevant market for the products/services concerned and in the relevant geographical market. A market share of 50% constitutes a dominant position. If the market share is lower, a dominant position may still exist in exceptional cases, for example in view of the structure of the market – many small players who are unable to compete with the much larger company – or a significant lead due to industrial or intellectual property rights. The remaining companies risk becoming pawns of the company with the dominant position. The ACM has already effectively started applying such an investigation based on Article 102 TFEU. This article concerns the abuse of a dominant position on the internal – European – market or a substantial part thereof, insofar as this may adversely affect trade between Member States.

As a result of the amendment to the Competition Act as of 1 September 2025, the ACM is now also permitted to investigate abuse of economic dominance based on the Competition Act in the case of concentrations that are not subject to notification. This does not require that trade between Member States may be adversely affected. It is expected that this will lead to even more investigations by the ACM into abuse of dominant position in concentrations that are not subject to notification. The criterion is not the existence of a dominant position, but the abuse of that position. The ACM's current practice will remain central to this, such as the practice of “stringing beads”, whereby a large player repeatedly takes over small competitors through a buy and build strategy and thus acquires an strong market position and whereby each individual takeover was previously not subject to notification.

In addition, a bill is in preparation that aims to further expand the powers of the ACM. The most important instrument is the creation of a so-called call-in power for the ACM. The ACM may request information from a company that it deems necessary to assess whether a non-notifiable concentration could significantly restrict competition in the Dutch market. The ACM can then still oblige the companies involved to notify the concentration for approval, even retrospectively.

Companies considering a takeover or entering a merger will no longer be able to blindly rely on being in a safe harbour in terms of competition law if they remain below the turnover thresholds of Section 29 of the Competition Act. They will also have to assess whether there are reasons for the scrutiny of the ACM for abusing their economic position. This carries heavy fines and necessitates conducting a thorough market analysis. Furthermore, if the bill on the ACM's call-in power comes into force, the ACM's powers will increase further and the possibility that concentrations not subject to notification will still have to be reported for investigation by the ACM will have to be considered.