As the holiday season approaches, we are again looking ahead to developments in the field of merger control for the coming year. In this second edition of the Flash Forward Merger Control, we discuss a number of key themes and trends that we expect to play a role in 2026 (and beyond), and that may have an impact on your practice and clients.

In this edition, we discuss the following (expected) developments:

• More investigations into non-notifiable acquisitions
• Possible introduction of a call-in power for the Netherlands Authority for Consumers and Markets (“ACM”)
• Expected expansion of the scope of application of the Dutch Act on Screening of Investments, Mergers and Acquisitions (“Vifo Act”)
• Possible introduction of an investment screening mechanism for the defence industry
• Upcoming amendment of the Foreign Direct Investment Regulation (“FDI Regulation”)
• Increase in material assessment of healthcare-specific mergers by the Dutch Healthcare Authority (“NZa”)
• More frequent ex officio investigations under the Foreign Subsidies Regulation (“FSR”)

More investigations into non-notifiable acquisitions

As of 1 September 2025, Article 24(2) of the Dutch Competition Act (“Mw”) has been repealed. This provision stipulated that the national prohibition on abuse of a dominant position could not be applied in the assessment of acquisitions. As a result of its repeal, the ACM can now also investigate non-notifiable transactions (either pre- or post-closing) where the acquisition may constitute an abuse of the acquirer’s pre-existing dominant position. For acquiring parties, this entails an increased risk of (ex post) interventions, as well as the need to assess not only notification thresholds but also the potential dominance of the acquirer at an early stage.

Investigations of non-notifiable concentrations in the context of abuse of dominance (also referred to as the Towercast doctrine, named after the CJEU’s judgment in which it introduced this doctrine) are becoming increasingly common. For example, in March 2025, the ACM launched an investigation into the potentially anti-competitive acquisition of Ziemann by cash-in-transit company Brink’s. With the repeal of Article 24(2) Mw, it is likely that the ACM will more frequently assess whether an acquisition qualifies as an abuse of an (existing) dominant position.

In other countries, this practice has already become relatively common. The Belgian competition authority, for instance, has investigated several acquisitions for possible abuse of dominance (Proximus/EDPnet in 2023 and Live Nation/Pukkelpop in 2025). In November 2025, the French competition authority was the first to impose a fine for an abusive acquisition. This fine related to the acquisition by the online healthcare platform Doctolib of its competitor MonDocteur in 2018. Internal documents showed that Doctolib intended to eliminate its main competitor through this acquisition, in order to strengthen its dominant position (by expanding its customer base) and enable price increases.

Whether a potential acquirer holds a dominant position prior to a transaction is often difficult to determine with certainty. If there is an indication that the acquirer holds more than a 40% market share and intends to acquire a competitor, it is advisable to identify any Towercast-related risks. In this context, the role of internal (transaction) documents is becoming increasingly important, as these may also reveal potential concerns.

Finally, it is worth noting that competition authorities tend to broadly interpret their powers under the Towercast doctrine. Both the French competition authority and Belgian competition authority have applied the Towercast doctrine also to assess transactions under Article 101 TFEU, the cartel prohibition.

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Legislative proposal introducing a call-in power for the ACM

On 25 June 2025, a legislative proposal was submitted to introduce a so-called ‘call-in power’ for the ACM. On the basis of this power, the ACM would be able to intervene ex ante in acquisitions that do not exceed the “general” turnover thresholds. This measure follows recent concerns related to the effects of private equity acquisitions, particularly in the following three sectors: general practitioner practices, veterinary practices and childcare. The proposal intends to enable the ACM to act against so-called ‘industry roll-ups’, serial acquisitions in small or niche markets that fall below the turnover thresholds, and ‘killer acquisitions’.

Under the current proposal, the ACM may request information about a transaction if at least one of the undertakings involved achieved a turnover of € 30 million in the Netherlands in the preceding year. As regards timelines and procedure, the following has been proposed:

• the ACM may issue an information request within a four-week period starting from the earliest of the following moments: (i) the moment at which the intention to bring about the concentration is made public, (ii) the moment at which the ACM becomes aware of this intention, or (iii) six months after the agreement giving rise to the concentration has entered into force;
• the ACM then sets a reasonable time limit within which the relevant information must be provided and, during that period, may request additional information;
• after the expiry of this reasonable period, the ACM will in principle have four weeks to assess whether the concentration could significantly impede effective competition;
• if so, the ACM will (i) require the undertakings concerned to notify the concentration, and (ii) impose a standstill obligation on the merging parties until four weeks after the concentration has been notified;
• once the notification has been made, the regular time limits for the review of notifiable concentrations apply.

Considering the timelines set out in the legislative proposal, several months may pass before parties obtain clarity as to whether their proposed concentration is permissible. From the perspective of legal certainty, it is therefore advisable, if this proposal enters into force, to inform the ACM as soon as possible of a concentration that may be subject to a potential call-in, such as transactions in the sectors mentioned above.

On 1 October 2025, the Dutch Council of State published a critical opinion on the proposal, in particular as regards the proportionality of the call-in power and the legal uncertainty it creates. The ACM defended the proposed call-in power, though it suggested combining the call-in power with increasing the ‘general’ individual turnover threshold from € 30 million to € 50 million to prevent its administrative burden from growing substantially (as the Council of State warned about). After the opinion of the Council of State and the ACM’s response, it is now up to the legislator to decide on any subsequent steps.

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Expansion of the Vifo Act to new sectors

In light of the rapidly changing geopolitical situation, a proposal has been under consideration since 19 December 2024 to expand the scope of the Vifo Act to new sectors and technologies. In short, the proposal adds the following new categories of sensitive technologies to the Decree on the Scope of Sensitive Technologies:

• advanced materials technology;
• nanotechnology;
• biotechnology;
• artificial intelligence;
• sensor and navigation technology; and
• nuclear technology for medical use.

Which technologies are specifically designated within these categories is further specified in the Decree and its explanatory memorandum. It is intended that all of these technologies will also be designated as highly sensitive, meaning that the threshold of significant influence (rather than decisive influence) will apply to investments in such technologies. In addition, the Ministry of Economic Affairs intends to designate several additional dual-use goods as highly sensitive, specifically certain advanced telecommunications and information security technologies.

The Council of State has yet to issue its opinion on the proposal. The amendments will therefore enter into force no earlier than early 2026. If the amendments are adopted, this will mean for M&A practitioners that mergers and acquisitions in an increasing number of sectors may become subject to investment screening by the Dutch Investment Screening Bureau (“BTI”). This thus requires an even more rigorous analysis of transaction risks, timelines and notification obligations when clients are active in, or involved with, vital or strategic sectors.

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Legislative proposal for an investment screening mechanism for the defence industry

In addition to the expansion of the Vifo Act, a legislative proposal has been under consideration since 2024 to introduce, among other things, a separate investment screening mechanism for the defence industry (the Defence and Security-Related Industry Resilience Act). This screening mechanism is intended to strengthen the strategic position of the Dutch defence sector and focuses on investments, mergers and acquisitions within the armed forces’ supply chain. This new mechanism will coexist alongside the Vifo Act and, in doing so, will replace and broaden the current Vifo screening regime with respect to military goods, so that essential suppliers will also fall under regulatory oversight. The proposal contains provisions similar to those of the Vifo Act, such as a notification obligation, a standstill obligation, a nullity sanction and the possibility to impose conditions (see the previous edition of our Flash Forward for further details). The Council of State still needs to issue an opinion on this proposal. The ACM published a positive assessment of the proposal’s feasibility and enforceability in November 2025. The Dutch data protection authority, however, made a number of critical comments on the proposal.

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Political agreement on strengthened FDI Regulation

At the EU level, a political agreement was reached mid-December regarding the strengthening of the FDI Regulation. The agreed framework entails the following changes:

• all Member States will be required to have a screening mechanism in place for certain sensitive and strategic core areas (see below);
• indirect investments will also fall within the scope of the FDI Regulation;
• a strengthened cooperation framework between Member States, though screening decisions will remain the exclusive responsibility of the individual Member State;
• streamlining of processes and enhanced interoperability, including filtering criteria, a new shared database and an optional single portal for the electronic filing of foreign investments; and
• certain transparency improvements.

Compared to the Commission’s initial proposal, a number of technologies have been removed from scope. Although no final, more detailed list has yet been published, the Council has indicated that the following sensitive and strategic core areas will fall within the scope of the Regulation:

• dual-use goods and military goods;
• hyper-critical technologies, such as artificial intelligence (aligned with the definitions in the AI Act and focused on general-purpose artificial intelligence relevant to space or defence);
• critical raw materials;
• critical entities in energy, transport and digital infrastructure, based on a risk-based assessment by the Member State in which the EU target undertaking is established;
• electoral infrastructures (such as voter databases, voting systems and election management systems);
• a closed list of entities within the financial system, limited to central counterparties, central securities depositories, operators of regulated markets, operators of payment systems (excluding central banks) and systemically important institutions.

The revised framework is expected to enter into force in the first half of 2026, following formal approval by the Council and the European Parliament. Member States will then have eighteen months to implement the changes into their national legislation.

In the Netherlands, this is expected to result once again in amendments to the Vifo Act and/or the Decree on the Scope of Sensitive Technologies. For example, not all “critical raw materials” and electoral infrastructure are currently covered by the Vifo Act. Although it will take some time, it is therefore important for M&A practitioners to remain alert to the expected further expansion of the scope of the Vifo Act and to potential changes to timelines and other procedural aspects, including a formalisation of the “two-phase” system.

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Reinforcement of the healthcare-specific merger assessment

Last summer, a legislative proposal to amend the Healthcare Market Regulation Act (“Wmg”) was opened for consultation. The proposal aims to significantly expand the healthcare-specific merger assessment by allowing the NZa not only to review the merger process, but also to assess the substantive effects of mergers and acquisitions in the healthcare sector. Under the new proposal, the NZa may refuse approval of a healthcare merger where the continuity of care is threatened. This power currently exists only in relation to critical care, such as ambulance services and emergency care, but may be extended under the new proposal to all healthcare services (as defined in the Health Insurance Act, the Long-term Care Act and the Forensic Care Act).

In addition, the NZa will be granted powers to block mergers where there are risks pertaining to the lawfulness of care, such as unlawful billing practices or weak financial management. The quality of care will also become an explicit assessment criterion: at the request of the NZa, the Dutch Health and Youth Care Inspectorate will issue an opinion where there are signals or ongoing enforcement measures, or where the concentration is of such a size that the ACM is also involved. If the Inspectorate’s opinion indicates that the standards for ‘good care’ or proper organisation of care may be breached, the concentration will not be approved. The NZa may furthermore revoke an approval granted on the basis of incorrect or incomplete information, and may impose fines in that context.

The proposed broadening of the assessment criteria means that not only procedural elements (i.e. the consultation of stakeholders) of a proposed merger will be scrutinised, but that the NZa will also play a more substantive role in determining whether a merger or acquisition is permissible. It is expected that this may result in some mergers being blocked in the future. The proposal may also lead to legal uncertainty, given the open-ended nature of the quality assessment standards, and to an increase in administrative burdens. The final legislative proposal is expected in early 2026.

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More frequent ex officio investigations under the FSR

Under the FSR, a concentration must be notified where one of the merging parties, the target or the joint venture has an EU turnover exceeding € 500 million and all parties together received more than € 50 million in foreign financial contributions (“FFCs”) from third countries in the preceding three years. FFCs cover virtually all forms of financial support from non-EU countries, including remuneration for the provision of goods and services, regardless of the conditions under which such support was granted. In practice, the FFC reporting obligations – particularly for private equity funds – have proven to entail a heavy administrative burden, despite the Commission having published extensive Q&A guidance containing various simplifications.

The first completed cases illustrate how the FSR is applied in practice. In the case of e&/PPF Telecom Group, the Commission investigated substantial aid granted by the UAE to e&. Although the foreign subsidies did not distort the acquisition process itself, the Commission concluded that they could distort competition post-transaction. In order to obtain (conditional) approval, e& offered commitments, such as the removal of an unlimited state guarantee and to apply market-conform conditions. Similarly, the acquisition of Covestro by ADNOC triggered an in-depth investigation due to aid granted by the UAE. Recently, the Commission conditionally approved the acquisition after accepting commitments from ADNOC – such as granting access to Covestro’s patents for sustainable technologies.

FSR enforcement to date has primarily focused on strategic sectors such as telecommunications, infrastructure and renewable energy. Although the FSR has been criticised by third countries, particularly China, for allegedly creating trade barriers, oversight under the FSR is expected to increase if it is up to the Commission. In the current geopolitical climate, the expectation is that the FSR’s ex officio investigative tool will be used more frequently. In addition, with the forthcoming new (draft) FSR guidelines in January 2026, the Commission is likely to more actively call-in below-threshold concentrations where there is a suspicion of involvement of foreign subsidies (see the first draft of the FSR guidelines here).

For further developments in the area of the FSR, we refer to our recent blog.

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Thank you for reading the second edition of the Flash Forward Merger Control. We wish you happy holidays and a successful new year!

Team Competition – bureau Brandeis

Bas Braeken (Partner) | Jade Versteeg (Attorney-at-law) | Timo Hieselaar (Attorney-at-law) | Demi van den Berg (Attorney-at-law) | Joost van Belois (Attorney-at-law) | Lisanne Kooijman (Paralegal)