Arnout Koeman

The Authority for Consumers & Markets (“ACM“) recently announced its 2025 agenda (link). This agenda outlines the regulator’s priorities and focus areas for the coming years. Among other things, the ACM wishes to get ready for the challenges of our time and has defined three focus areas in that context. There are also plans to conduct market surveys in certain sectors. In the blog below, you can read what the ACM plans to do in the coming year, and what this could mean for you. Focus points voor 2025 This year, the ACM will focus on three key societal themes. In this way, the ACM wishes to ensure the healthy functioning of the markets concerned, and protect consumers’ interests in these rapidly developing themes. This year’s focus is on: Promoting an open and fair digital economy; Accelerating the energy transition; and Developing a more sustainable economy. The focus points for 2025 are a continuation of the focus work for 2024 (link). The focus from 2024 will be further pursued by more specific and targeted actions in 2025, with a stronger emphasis on digital innovation, energy flexibility and supply chain sustainability. Digital economy The Dutch economy is becoming increasingly digitised. This brings opportunities for economic growth and innovation on the one hand, but also risks on the other. The ACM will therefore pay attention to protecting consumers, especially vulnerable groups such as minors, while promoting economic growth and innovation. Areas of focus include: More oversight of big tech companies to prevent abuse of power; Taking action against abuse, deception and manipulation in online sales and gaming; and Strengthening data protection and consumer privacy rights. Energy transition The ACM is also committed to a rapid energy transition. The ACM aims for a reliable and sustainable energy supply for all people and businesses, now and in the future. In that context, the ACM plans, among other things, to reduce grid congestion and improve flexible grid use in the coming year. In addition, the ACM will promote renewable energy sources and design new regulatory methods for grid operators for future-proof infrastructure. Sustainable economy The ACM supports the development of a sustainable economy. The focus is on ensuring a level playing field between companies and providing clarity for companies when cooperating for sustainability purposes within competition rules. The ACM also wants to ensure that consumers can trust information on sustainability provided by companies. Market research In 2025, the ACM will launch five new general market reviews. Specifically, it will look at (i) veterinary practices, (ii) (digital) learning resources, (iii) computerised consumer prices, (iv) the fixed internet budget segment and (v) the development of the hydrogen market. In this way, the ACM can look at the (dis)functioning of these markets without concrete suspicions of violations. For instance, in the veterinary practice market, the issue is that many practices have become owned by investment funds in recent years, which may have led to sharp price increases. In its market studies, the ACM will use its new “Methodology for market research” published in February 2025 (link). In this document, the ACM describes the reasons for (the selection of) market investigations and the process of market investigations. What does this mean for you? The ACM’s 2025 agenda could be significant for several parties. For companies, it is likely that increased compliance requirements will be introduced, especially in the digital sector. More enforcement can also be expected with regard to dissemination of (online) disinformation on sustainability issues or misconduct related to online sales or gaming. Furthermore, the ACM wishes to encourage a healthy market and create more opportunities for companies to realise sustainability initiatives. Consumers can also expect some change. For instance, protecting consumer rights (especially within the focus areas) is one of the ACM’s priorities, and it intends to achieve healthy markets and price formation for consumers through its market investigations. Companies active in the sectors under investigation by the ACM, can expect to receive questions from the ACM. Do you have any questions on this topic? Or do you, as a company, need support in contacting the ACM? Feel free to contact Monika Beck or one of our other specialists.

On 8 January 2025, the District Court of Midden-Nederland gave judgment in the ‘Essure case’ (ECLI:NL:RBMNE:2025:10). Drug manufacturer Bayer marketed a permanent sterilisation method for women called ‘Essure’, which had to be implanted on the fallopian tubes. The Essure Claims Foundation (‘Foundation’) brought a mass tort action against Bayer. The Foundation claimed that many women became seriously ill from this sterilisation implant. In its judgment, the court ruled on a number of formal points regarding, among other things, the applicability of the WAMCA and the admissibility of the Foundation in the proceedings. The court ruled in favour of the Foundation on all points. Below, we highlight some noteworthy points of the judgment. Temporal application of the WAMCA: no cut-off The WAMCA applies to collective actions that (i) are brought after the WAMCA came into force on 1 January 2020 and (ii) relate to events that took place on or after 15 November 2016. Bayer believes there should be a cut-off in the claims of the Foundation. Bayer argues that with regard to implants placed before 15 November 2016, the old statutory regime (WCAM) should be applied; only with regard to implants placed on or after 15 November 2016 should the WAMCA be applied. The court is of another opinion. The court considers that there is a series of events, as the women have in common that they all had the Essure implanted, but at a different point in time. According to the court, this series of events consists of the same, repetitive event that caused the alleged harm to several individual women who belong to the circle of persons whose interests the collective claim seeks to protect. This series of events did not end until after 15 November 2016. Therefore, the court concluded that the WAMCA applies to all of the Foundation’s claims. The claims for material and non-material damage can be bundled An foundation who can start a mass-litigation case under the WAMCA can only bring an action if it seeks to protect similar interests of the persons involved. This similarity requirement is met if these interests lend themselves to bundling. As a result, the special circumstances of the individual parties need not be considered in the proceedings. In addition to material damages, the Foundation also claims immaterial damages for the women who had Essure surgically removed. The Foundation divided the women into 17 categories and claimed a lump sum of damages for each category. Bayer takes the view that the claims cannot be bundled in this case, as according to Bayer, immaterial damages depend on individual facts and circumstances. In doing so, Bayer also relies on the Supreme Court’s ruling on earthquake damage in Groningen. In this judgment, the Supreme Court ruled that immaterial damage due to impairment of the person cannot be determined on a flat-rate basis, as this is not compatible with the highly personal nature of such damage. Again, the court is of another opinion. The court considers that, unlike in the aforementioned Supreme Court judgment, in the present case, immaterial damages are not claimed for personal impairment. In the present case, immaterial damages are claimed because the women suffered personal injury. As a result, according to the court, immaterial damages are even more logical than for an impairment in person. According to the court, it is not necessary that the women also suffered mental injury. The court concludes by considering that it is therefore possible that it may find that the immaterial damages suffered by the women are at least a certain (lump sum) amount. The court concludes that the Foundation’s claim for compensation for both material and immaterial damages are bundleable. Thus, the Foundation is admissible in all its claims, including those relating to the immaterial damages. Litigation funder’s fee of 28.75% is not unreasonable In the context of the admissibility of the Foundation, it must be assessed whether or not the litigation funder’s fee is prima facie unreasonable. The amount of the litigation funder’s fee should not be such as to disadvantage the women or provide an unacceptable incentive for the litigation funder to push for an adverse outcome for the women. It has been agreed with the litigation funder that it will receive 25% of the potential damages. In addition, it has been agreed that the litigation funder may charge all its incurred costs up to a maximum of 5% on the potential damages. This therefore means that a minimum of (95% minus 25% =) 71.25% of the damages will accrue to the women; the litigation funder can therefore potentially receive 28.75% of the damages. Dutch case law states that a range of 10 to 25% can be considered the maximum fee for a litigation funder. The court finds that the Foundation has sufficiently substantiated why a fee of more than 25% is reasonable. The Foundation has substantiated that it intends to recover the costs of the proceedings from Bayer by means of an actual litigation cost order or an equal agreement in a settlement. The Foundation has further argued that it is still uncertain what costs will be eligible for reimbursement through a (litigation) order or settlement. The amount of costs to be incurred is also still uncertain. In view of this, the court concludes that the Foundation has sufficiently substantiated that the agreed fee is not unreasonably high. Therefore, this does not pose an issue for the admissibility of the Foundation. Conclusion The Foundation’s victory shows that both the applicability of the WAMCA and the admissibility of foundations that are litigating under the WAMCA can be applied practically. Questions about the WAMCA? Please contact Lennart Hoeksema, Arnout Koeman or one of our other WAMCA specialists.

On 19 December 2024, the Dutch Consumer & Market Authority (“ACM“) announced that it has clarified and updated the merger notification process (link in Dutch only). A concentration is a merger, an acquisition or the creation of a joint venture. Background Under Dutch competition law, companies must report a merger, acquisition or joint venture to the ACM if they meet the following two conditions: (i) the companies merging have a combined annual turnover of EUR 150 million or more worldwide and (ii) at least two of the merging companies each have an annual turnover of €30 million or more in the Netherlands This notification takes place by submitting a notification form. In this form, the parties to the transaction provide details (for example) of the parties and their activities, the markets in which they operate and what position the parties occupy in these markets after the transaction (and whether this is problematic or not). The notification to the ACM is separate from a notification to, for example, the Dutch Healthcare Authority (NZa) or the Investment Screening Bureau (“BTI“). Regarding a notification to the BTI under the Vifo Act, see our previous blog (link). Current practice Currently, it was already common practice to (informally) contact the ACM to announce a notification in advance. Often, the opportunity was then also immediately taken by (an authorised representative of) parties to provide (summary) information about the notification, such as information about the parties, (the lack of) overlap in terms of parties’ activities and the type of transaction. This contact moment could especially benefit the speed of non-problematic reports (on the condition that sufficient information was provided beforehand). New practice The ACM has now made this notice mandatory for every notification and formalised it through an intake form on its website (link in Dutch only). This intake form must be completed “about a week” before the official notification. By doing so, companies already provide relevant information to the ACM, for instance on the type of transaction and on the activities of the companies involved A practical addition is also that parties can indicate in advance if they cannot answer certain questions in the notification form. For example, it often happens that parties do not have direct contact details of their competitors in the market, while the ACM should receive this information according to the notification form. In our experience in the past the ACM was not very strict in answering this question for non-problematic notifications. In that case, parties usually received an (implicit) waiver to provide this information. From now on, the ACM will explicitly contact parties to reject or grant the request to leave questions unanswered. Finally, the ACM has taken the opportunity to bring the notification form more in line with the European Commission’s notification form. For instance, the ACM now requires parties in the notification form to prepare a summary for the Official Gazette and NACE codes (i.e., activity codes of a company link) must be included. The European Commission requests similar information in its own notification form. Analysis We welcome these developments. This is the latest step in a longer-running process by the ACM to simplify the notification process. At the same time, this reduces the burden on companies during the notification process. This process started several years back with the possibility of submitting a notification to the ACM digitally. It has now led to an intake form on its website. Especially for those notifications where the ACM already immediately sees no problems (e.g. because the parties to the transaction have no overlap in their activities), these measures are expected to lead to faster turnaround times. At the same time, this gives the ACM more room for those notifications that seem more problematic. Questions Do you have any questions on this topic? Or do you need support as a company with a notification to the ACM? If so, please feel free to contact Arnout Koeman or one of our other specialists.

On 19 December 2024, Dutch Minister of Economic Affairs Beljaarts officially announced his intention to extend the scope of the Act on Security Screening of Investments, Mergers and Acquisitions (the “Vifo Act“), requiring that the Vifo Act be amended. Background The Vifo Act was introduced to give the Dutch government more control over mergers and acquisitions by – foreign – parties that could potentially affect the national security of the Netherlands. This means that, in certain – sensitive – sectors, a buyer must pre-notify the Investment Review Office (“BTI“) of their intention to acquire or merge with a company. Any transaction may only be executed/completed once the BTI has assessed that there are no national security risks or that any risks are covered by control measures (the standstill obligation). Current scope Under the current Vifo Act, a transaction must be reported to the BTI if the target company operates in one of the following sectors (or is specifically designated in the Vifo Act): Heat transport, nuclear power, Schiphol airport, port of Rotterdam, banking sector, financial market infrastructure, extractable energy or gas storage; Sensitive (or highly sensitive) technology (dual-use products, military goods, quantum technology, photonics technology, semiconductor technology and high assurance products); or Corporate campus operators. This covers a broad list of the largest and most important companies based in the Netherlands, including Schiphol and the port of Rotterdam, but also ASML and nuclear power plant Borssele. Extension to the scope In essence, the legislator wants to extend the scope of the Vifo Act to include more technological sectors. The bill, which is still under consultation, will add biotechnology, AI, advanced materials and nanotechnology, sensor and navigation technology and nuclear technology for medical uses to the scope of the Vifo Act. An example of nuclear technology for medical uses is the nuclear reactor in Petten. This reactor produces isotopes for medical use for a large proportion of cancer patients worldwide. Under the new proposal, the sale of this reactor would also require screening by the BTI. This change in the law could possibly take effect from as early as 1 July 2025.    Any questions? If you have any questions on this topic or your company needs support with a Vifo Act-related notification to the BTI, then please contact Arnout Koeman or one of our other specialists.