Monika Beck

The Dutch healthcare sector is facing radical changes. Rising healthcare costs, staff shortages and the call for a future-proof healthcare landscape are forcing hospitals, healthcare providers and health insurers to work more closely together and redistribute care. However, cooperation in healthcare quickly touches on competition law: when healthcare institutions make agreements amongst themselves about who provides which care, this can easily qualify as a prohibited market-sharing agreement. The Netherlands Authority for Consumers and Markets (“ACM”) recently published a letter on this subject, addressed to the parties participating in the ‘Round Table on a Future-Proof Healthcare Landscape through Concentration and Distribution’. This is an important signal for all healthcare providers and insurers active in regional partnerships. Description of the letter The ACM notes that healthcare markets are undergoing significant change. Healthcare stakeholders — including patient organisations, healthcare providers, hospitals and health insurers — are working together to create a regionally balanced healthcare landscape for the future. The Round Table, led by the Dutch Healthcare Institute, is the platform where this collaboration takes shape. ACM recognises the social importance of these developments and wishes to contribute constructively. At the same time, the regulator emphasises that agreements on the redistribution of healthcare between healthcare institutions must be assessed against competition rules. Such agreements may amount to market-sharing agreements — one of the most serious categories of competition infringements under Article 6 of the Dutch Competition Act and Article 101 TFEU. To provide legal certainty to the parties, the ACM has indicated that it will not initiate an investigation on its own initiative into regional healthcare collaborations that may restrict competition, provided the following conditions are met: All relevant parties from the healthcare triangle comprising healthcare providers (including medical specialists and nurses), health insurers and patients are involved. Which patient representatives must be involved depends on the agreements made. Depending on the specific case, patient representatives with specific knowledge of the condition in question may sometimes be required. Concrete, measurable and identifiable objectives have been set regarding affordable, accessible and high-quality care, and all relevant parties support these agreements . The ACM thereby sets enforcement priorities: it indicates where its enforcement focus does not lie, without the legal prohibition ceasing to apply. The information letter serves as a guide for parties to organise their cooperation in such a way that it remains within the bounds of competition law. What does this mean for your healthcare organisation? For healthcare institutions, health insurers and other healthcare parties, this notice has concrete implications: The obligation to assess compliance remains. The announcement that the ACM will not conduct proactive investigations does not relieve parties of the obligation to assess their cooperation agreements themselves against the competition rules. The prohibition on market-sharing agreements remains in full force. Document your cooperation carefully. Record the objectives underlying the cooperation, the alternatives considered and the intended benefits for patients. A thorough file is essential in the event of a retrospective review. Seek legal advice at an early stage. Particularly in the case of regional reallocation agreements — where hospitals or healthcare providers agree on who will provide certain types of care — the line between such arrangements and prohibited market-sharing agreements is fine. Seeking legal advice early on prevents costly mistakes. Engage with the ACM as a discussion partner. The ACM explicitly states its willingness to contribute ideas regarding potential collaborations. Informal consultation with the regulator — or a formal request for an opinion — can provide valuable clarity before agreements are implemented. Keep an eye on European dimensions. In the case of collaborations that may affect trade between EU Member States, Article 101 TFEU also applies. This is particularly relevant for border regions or where foreign healthcare providers are involved. In short: the ACM allows for cooperation in the healthcare sector, but sets clear boundaries. A proactive and legally sound approach is essential for any healthcare party involved in regional redistribution agreements. Contact Do you have any questions on this subject? Or do you have other competition law queries? Please feel free to contact Arnout Koeman or Monika Beck or one of our other competition law specialists.

On Friday, January 9, 2026, the European Commission published the guidelines associated with the Foreign Subsidies Regulation (“FSR”). In these guidelines, the European Commission clarifies various concepts in the FSR and explains the application of the FSR. This publication marks another step in making the FSR review process transparent.  Foreign Subsidies Regulation – how was it again? On July 12, 2023, the FSR became applicable. The FSR allows the European Commission to address distortions caused by foreign subsidies. The aim is to create a level-playing-field between all (EU and non-EU) companies operating within the EU. In a nutshell, the FSR contains three procedures: A reporting requirement for transactions involving subsidies given by third countries. This notification requirement applies if the target company, one of the merging parties or the joint venture has an EU turnover of at least EUR 500 million and these companies have received subsidies from third countries totaling more than EUR 50 million in the three years prior to the conclusion of the purchase agreement; A notification requirement for procurement involving subsidies from third countries. This notification requirement applies if the estimated contract value is at least EUR 250 million and the tenderer has received more than EUR 4 million in subsidies from third countries in the three years prior to the notification; and An ex-officio procedure by the European Commission, in which the European Commission launches an investigation on its own initiative. Since coming into force, the European Commission has launched a few investigations and has completed very few investigations as well as published decisions. As such, these guidelines, which the European Commission needed to draft according to the FSR, are also timely. They give (foreign) parties more legal certainty about their legal position under the FSR.    On what issues do the FSR guidelines provide more clarity? The comprehensive guidelines (48 pages) explain many parts of the FSR. A few points to highlight are the following: The assessment of market distortions caused by subsidies from third countries. The guidelines clarify that when the European Commission has concluded that a company has benefited from a foreign subsidy, the European Commission determines whether market distortion has occurred in two steps. First, the Commission examines whether the foreign subsidy strengthens the firm’s position in the EU market. Second, the European Commission examines the impact of the subsidy on competition in the market. In doing so, the European Commission analyzes whether the subsidy is responsible for a change in the company’s behavior and market dynamics to the detriment of other market parties. Assessment in tenders. The European Commission also provided further clarification on how it will assess market distortions caused by subsidies in tenders. In doing so, the European Commission will first examine whether the company adjusted the tender as a result of the subsidy. If so, the European Commission will assess whether the tender is unduly advantageous by comparing it with other comparable tenders and assessing the tender by comparing the conditions with the contracting authority’s own estimates. The balancing test. The balancing test can be applied by the European Commission on a grant-by-grant basis and takes into account the specific circumstances of the case. The guidelines explain how to weigh positive effects of a subsidy versus negative effects of a subsidy. In doing so, the European Commission will include only the positive effects that are specific to the subsidy. The test will also include the severity of the market distortion and the positive effects without the market distortion. An ex-officio investigation. The European Commission has provided more clarity in the guidelines on when it will initiate an ex-officio investigation. In doing so, the guidelines provide so-called safe harbor thresholds: for procurement procedures with a low value, subsidies under EUR 4 million and subsidies aimed at special circumstances (such as natural disasters), the European Commission will not start an investigation. What does this mean for your company? With the publication of these FSR Guidelines, the European Commission is taking the next step in the development of the FSR. These guidelines give companies and contracting authorities more clarity on how the European Commission assesses notifications. Importantly, the European Commission is also introducing safe harbor thresholds that will allow companies and contracting authorities to be more certain that the European Commission will not start an investigation. This will increase legal certainty. Do you have questions about the FSR or the guidelines discussed above? Please contact Arnout Koeman or Monika Beck or one of our other FSR and procurement law specialists.

On 16 December 2025, the European Commission adopted the revised version of the Exemption Decision for state aid for services of general economic interest (“SGEI Decision”). The SGEI Decision makes it possible to grant aid for services that cannot usually be provided profitably on the market without the need to notify the aid to the European Commission. This SGEI Decision has now been updated by the European Commission, partly with the aim of stimulating housing construction and combating the housing crisis. What exactly has changed? And what consequences does this have for you? You can read all about it in the blog below! What is state aid? State aid law aims to protect competition by preventing governments from unfairly favouring certain companies. This is achieved through the prohibition of state aid in Article 107 of the Treaty on the Functioning of the European Union (TFEU). Under Article 107(1) TFEU, state aid is deemed to exist if the following five cumulative conditions are met: The aid is granted to an undertaking engaged in an economic activity; The aid is financed from state resources; The aid confers on the undertaking an economic advantage that it would not have obtained under normal market conditions (non-market conformity); The aid is selective: it applies to one or more specific undertakings or a specific sector/region; The aid may distort competition and adversely affect trade between Member States of the European Union. If all of the above conditions are met, the aid is prohibited unless it is approved by the European Commission or a successful appeal can be made on the basis of an exception. One of these exceptions is aid for services of general economic interest (“SGEI“). Services of general economic interest SGEIs are economic activities that serve the general interest but cannot usually be offered profitably on the market. State aid is therefore required to be able to offer these services to citizens on the market under the desired conditions or quality. This may concern, for example, social housing or the operation of economically inefficient bus services. Public authorities have a certain degree of discretion in determining which services they qualify as SGEIs. The SGEI Decision The European Commission has developed a number of instruments on the basis of which SGEI aid can be lawfully granted to undertakings. One of these instruments is the SGEI Decision. On the basis of the SGEI Decision, public authorities may compensate undertakings entrusted with the operation of a SGEI for the provision of the SGEI in question, provided that the following conditions are met: The service qualifies as an SGEI; The compensation does not exceed €20 million per year or falls within the other categories of SGEIs covered by the scope of the SGEI Decision in accordance with Article 2(1) of the SGEI Decision; The period for which the undertaking is charged with the SGEI does not exceed 10 years; The amount of compensation does not exceed what is necessary to cover the net costs of implementing the SGEI, including a reasonable profit, i.e., there must be no overcompensation; The undertaking that will perform the SGEI is entrusted with the performance of the SGEI in an entrustment decision setting out the SGEI, the compensation mechanism and other relevant aspects as prescribed in the SGEI Decision; The administrative conditions (control of overcompensation, transparency) are met.   Why revise? The European Commission has conducted an evaluation of (the application of) the ‘old’ SGEI Decision in practice. This has led to the conclusion that the current state aid rules do not provide sufficient guidance for Member States to tackle the housing crisis that the entire European Union is facing. The ‘old’ SGEI Decision was also in need of updating, clarification and simplification of the administrative conditions in certain areas. For these reasons, the European Commission has adopted a revised version of the SGEI Decision, which incorporates experiences from the old decision, economic changes (including the housing crisis) and market developments. The revision is part of the European Commission’s ‘European Plan for Affordable Housing’. SGEI Decision: new vs. old The European Commission has made the following changes to the revised SGEI Decision with regard to the following topics: Increase in compensation ceiling In view of inflation since the entry into force of the ‘old’ SGEI Decision in 2012, the Commission has raised the general compensation ceiling. Based on the revised SGEI Decision, it is possible to grant up to €20 million per year in aid under the general compensation ceiling. Under the “old” SGEI Decision, this ceiling was €15 million. Social and affordable housing as SGEI In order to combat the housing crisis in Europe, the European Commission has further elaborated/relaxed the frameworks for SGEI aid for social housing. It has also added affordable housing as a category of aid. SGEI aid for social and affordable housing is not subject to the general compensation ceiling and may therefore exceed €20 million per year, provided that this does not lead to overcompensation. The European Commission has set out the main definitions and conditions for housing aid in the annex to the revised SGEI Decision. An SGEI in the field of social housing is defined as a service for disadvantaged households or socially disadvantaged groups, including the homeless. SGEIs for affordable housing mainly concern households that are not disadvantaged but which, due to market developments, in particular market failure, do not have access to housing on affordable terms. Examples include first-time buyers, the elderly or single parents. In the annex to the revised SGEI Decision, the Commission sets out, among other things, the following conditions (in addition to the general conditions of the SGEI Decision) that must be met when granting aid for social and/or affordable housing: Quality, environmental and accessibility requirements: social and affordable housing must be of adequate quality and accessibility, comply with environmental standards and be adapted to the needs of households. Duration: in principle, social and affordable housing must be used for that purpose for at least 20 years to prevent subsidised housing from being sold quickly on the commercial market. Eligible costs: the annex contains a broad list of costs that are eligible for coverage by SGEI aid. With regard to affordable housing, requirements are also imposed on the prices charged that can be charged. These must be set in a transparent manner and remain below market prices, but not lower than necessary to achieve the objective pursued. The dwellings in question must also actually be used as affordable housing (and not, for example, as second homes) and the allocation of dwellings must be based on open systems. New/amended aid categories Critical medicines have been added as a possible aid category in the revised DAEB Exemption Decision. The frameworks for airports, air connections, maritime connections with islands and ports have also been amended. Control of overcompensation The European Commission has relaxed the regime with regard to the control of overcompensation. Under the ‘old’ SGEI Decision, control of overcompensation had to take place every three years and at the end of the SGEI. In the revised SGEI Decision, this frequency has been reduced to once every five years. Furthermore, ex post monitoring is no longer required if the beneficiary does not carry out any activities other than the SGEI and is legally obliged to reinvest all profits in the SGEI. Reporting and transparency obligations Under the ‘old’ SGEI Decision, Member States were subject to a biennial reporting obligation. This obligation will be abolished in 2026. Transparency will be ensured from 2028 onwards by means of a registration obligation. From 1 January 2028, all state aid under the SGEI Decision exceeding €1 million per undertaking will have to be registered in a central register within 20 working days of the aid being granted. Entry into force The above changes will enter into force on the twentieth day following the publication of the revised SGEI Decision in the Official Journal of the European Union. Practical impact Although the revised version of the SGEI Decision introduces a large number of changes at first glance, the essence of the decision remains largely the same in practice. The basic principles, such as the requirement for an allocation decision and the prohibition of overcompensation, remain in full force. These basic principles are supplemented by concrete guidelines that public authorities can use to tackle the housing shortage in a more flexible and efficient manner. The practical implications are currently limited to incorporating the new frameworks for social and affordable housing when granting support to this type of SGEI. Governments will be relieved of the biennial reporting obligation and will need to check for overcompensation less frequently. As of 1 January 2028, aid providers will be required to register aid grants exceeding €1 million per undertaking per SGEI in a central register. The extent to which these changes will solve the housing crisis remains to be seen in practice. Contact Do you have any questions about this topic? Or do you have other questions about state aid law? Please feel free to contact Monika Beck or one of our other state aid specialists.

As of 1 January 2026, the administrative regime for granting regular de minimis aid and de minimis aid for services of general economic interest (SGEI) will change. The key point is that the administrative obligation will largely shift from the beneficiary to the aid provider. From 1 January 2026, public authorities will have to register regular and SGEI de minimis aid in a central register (on national or EU level) and check in advance that the relevant de minimis threshold is not exceeded. This is in contrast to the current system, which allows a de minimis declaration requested from the aid beneficiary. Curious about what this will mean for you? We explain it in the blog below. What is state aid? State aid law aims to protect competition on the internal market by preventing governments from unfairly favouring certain companies. This is achieved through the prohibition of state aid in Article 107 of the Treaty on the Functioning of the European Union (TFEU). Under Article 107(1) TFEU, state aid is deemed to exist if the following five cumulative conditions are met: The aid is granted to an undertaking engaged in an economic activity; The aid is financed from state resources; The aid confers on the undertaking an economic advantage that it would not have obtained on the market (non-market conformity); The aid is selective: it applies to one or more specific undertakings or a specific sector/region; The aid may distort competition and adversely affect trade between Member States of the European Union (interstate effect). If all of the five conditions are met, the aid is prohibited unless it is approved by the European Commission or a successful appeal can be made on the basis of an exception. One of these exceptions is de minimis aid. De minimis aid The de minimis regulations allow governments to grant limited amounts of aid without having to notify the Commission. These amounts are considered too low to affect the internal market. There are four types of de minimis aid, each with its own threshold. Each company may receive a maximum of this ceiling amount of de minimis aid over a period of three calendar years. The thresholds apply per undertaking and per Member State. A Dutch private limited company can therefore receive a maximum of the relevant threshold for de minimis aid from all Dutch authorities combined over a period of three calendar years. Administrative obligation: old vs. new The thresholds for regular and SGEI de minimis aid have been increased as of 1 January 2024. This increase also modernised the administrative regime. This modernisation requires a more active approach from the aid provider compared to the current system and will take effect on 1 January 2026. Current system Under the current system, de minimis aid may be granted after 1) the beneficiary has been informed in writing or electronically by the aid provider of the amount of the aid and its de minimis nature, with direct reference to the applicable de minimis regulation, and 2) the beneficiary has submitted a statement of all de minimis aid received by that beneficiary over a period of three years. In short, a fairly undemanding administrative obligation with no deadlines attached. System as of 1 January 2026 As of 1 January 2026, information on de minimis aid granted (SGEI and regular) will have to be registered in a central register (the eAid register). The information must be registered within 20 working days of the aid being granted and must be stored in the register for at least 10 years after the aid has been granted. Authorities may only grant new de minimis aid after checking in the register that the applicable threshold amount has not been exceeded. The following data regarding the grant of the aid must be registered: Identification of the beneficiary; The amount of aid; The date of granting; The granting authority; The aid instrument; and The sector concerned based on the NACE classification. For three years after the introduction of the register, the ‘old’ administrative obligation will continue to apply in addition to the obligation to register aid. During that period, in addition to registration, authorities will also have to notify the beneficiary in writing or electronically of the amount of aid and its de minimis nature, with reference to the applicable regulation, and request a de minimis declaration. Regular and SGEI de minimis aid granted before 1 January 2026 is subject to the ‘old’ administrative obligation and therefore does not need to be registered. No registration requirement has yet been announced for de minimis aid for the fisheries and aquaculture sector. De minimis aid for the agricultural sector will be subject to the above registration requirement from 1 January 2027. Practical impact for public authorities From 1 January 2026, public authorities will be responsible for the registration requirement for regular and SGEI de minimis aid. Within 20 working days of granting the aid, public authorities will have to register the aid and the necessary related data in the eAid register. Prior to granting new de minimis aid, the register must also be checked to ensure that the applicable threshold amount is not exceeded. For three years after the introduction of the register, the current administrative obligation will also continue to apply, i.e. in addition to registration, the aid provider will also have to request a de minimis declaration and inform the beneficiary of the amount of aid and its de minimis nature, with reference to the applicable regulation. Contact Do you have any questions on this subject? Or do you have other questions about state aid law? Please feel free to contact Monika Beck or one of our other competition & state aid specialists.

Until 31 July 2025, the European Commission is organising a consultation on the revision of the state aid rules for Services of General Economic Interest (“SGEI”). In this consultation, the European Commission wishes to gather information from the market on the application of the SGEI rules and possible areas for improvement. This consultation is particularly relevant for public bodies, social housing providers and developers involved in housing projects and the delivery of affordable housing, as they are regularly constrained regarding the possibility of public funding for these projects. The European Commission wishes to adjust the SGEI rules accordingly, so that more housing projects can be realised within the frameworks of state aid law. What are the SGEI state aid rules? The SGEI rules provide a legal framework within which governments may grant state aid to organisations that perform services of general economic interest. These are services considered of general interest within society but which are usually not profitable, such as the realisation of social housing. The aim is to ensure that such aid does not lead to unfair competition within the European single market. The rules define the conditions and the amount of aid that may be granted without prior approval from the European Commission. Why this SGEI rules review? The European Commission sees a need to modernise the rules, partly because of the ongoing housing crisis across the EU. With the revision, the Commission wants to make it simpler and faster for member states to provide support for affordable and energy-efficient housing. Some technical adjustments are also proposed to improve the application of the rules. Your input sought The consultation offers government bodies and other stakeholders an opportunity to share their experiences and wishes. This is the time to raise practical bottlenecks and contribute ideas on the future of state aid for housing. Practical information Period: 5 June – 31 July 2025 Location: online Does your organisation deal with housing projects and state aid? Take part in the consultation by answering the questionnaire and contribute to better rules for affordable housing! If you would like assistance with this, or if you have other state aid questions, please do not hesitate to contact Monika Beck or one of our other specialists.

A recent ruling by the Trade and Industry Appeals Tribunal (CBb) highlighted the importance of the notion of an “undertaking” within state aid law. This particularly with regard to the situation where several entities are considered to be one undertaking. In such cases, all aid received by these entities should be added up, as they qualify as one undertaking and thus one aid beneficiary. This may have implications for, for example, application of aid ceilings. The ruling therefore offers important insights for companies that are part of a group and may receive state aid. CBb’s ruling In the judgment of February 20, 2025 (ECLI:NL:CBB:2025:76), the CBb dealt with a case in which a company (hereafter: Company X) appealed against a decision of the Minister of Economic Affairs in which a TVL subsidy (Reimbursement Fixed Costs) of Company X was revised and lowered. Based on this decision, an amount of €333,831.48 of the TVL subsidy received as an advance was recovered from Company X for exceeding the aid ceiling. The Minister reached this decision as Company X was part of a group which until December 1, 2021 consisted of Company X, Company Y and Company Z. Company Z was dissolved on December 1, 2021. All three companies received subsidies under the TVL scheme over different periods. This TVL scheme gave financial support to enterprises with loss of turnover due to COVID measures from June 2020. According to the Minister, in the present case, the TVL subsidy to Company X had exceeded the aid ceiling of €2.3 million applicable until Q1 of 2022. Company X believed that the recovery of part of its subsidy was unlawful, as the subsidies received by Company Z should not be added to the total subsidies received by the group. This is because Company Z had been dissolved as of December 1, 2021, which meant that it was not part of the group at the time of both the award and review of the subsidy given to Company X. The CBb did not follow Company X’s position and upheld the Minister’s judgment. The court ruled that the three companies qualify as one undertaking under state aid law, and that the total aid granted to them may not exceed the aid ceiling. Exceeding the aid ceiling would result in unlawful state aid. The fact that Company Z was no longer part of the group due to dissolution at the time of award and review of the subsidy does not change this. Because Company Z ceased to exist, the TVL subsidies granted to it (earlier) were not withdrawn from the group. They benefit the group (in)directly. This is also the case if the balance of dissolution has been used to pay a tax debt of Company Z. Even then, the subsidy received by Company Z prior to dissolution can provide (in)direct benefit to the rest of the group. In view of the above, the CBb held that the revision and lowering of the subsidy to Company X was justified. Determination of a higher amount would constitute unlawful state aid, according to the CBb. Definition of an enterprise within state aid law Under state aid law, an undertaking is defined as any entity engaged in an economic activity, regardless of its legal form and method of financing. Based on Union law jurisprudence, carrying out economic activities is defined as offering goods and/or services on a market. The concept of undertaking within state aid law is thus very broad, and can include virtually any legal form, regardless of whether the entity in question is profit-making or not. Any provider of a good or service on a market is, in theory, an undertaking within state aid law. Multiple entities as one company Within state aid law, several separate legal entities may be deemed to constitute a single economic entity for the purposes of state aid rules. They then qualify as a single undertaking, for the purposes of State aid reviews. This was also the case for the companies that were part of the group in the CBb ruling. In assessing whether multiple entities qualify as a single undertaking, a number of factors are considered which have been developed in Union law jurisprudence. In particular, the following factors are considered: Economic, organizational and functional links between entities; Degree of say and control; Joint performance on the market. Impact on state aid The classification of multiple legal entities as a single undertaking under state aid law may have negative consequences for the amount of aid granted. In such cases, the aid received by these separate legal entities must be added together to determine whether the aid remains below applicable aid ceilings. In the CBb ruling, this worked out negatively for Company X, which received a lower subsidy due to a past group composition. Indirect aid should also be taken into account in such cases. Conclusion For companies that may receive state aid, it is crucial to carefully analyse the interrelationships between different entities. Failure to pay sufficient attention to this may lead to unlawful state aid and recovery risks. This is the case, for example, when aid ceilings are exceeded because aid granted to different entities must be added together within the frameworks of state aid law. Do you have questions on this topic? Would you like to learn more about the qualification of multiple entities as a single enterprise for state aid purposes? Please feel free to contact Monika Beck or one of our other state aid specialists.