![]() ![]() A prohibition may also be imposed if the Minister believes that there is a threat to national security, defence, the enforcement of the legal order or (emergency) assistance. Another example is the interruption of the availability or reliability of a hosting service, Internet node, trust service or a data centre. This includes abuse or deliberate outage of the telecom network which could lead to an unlawful breach of the confidentiality of communication, or an interruption of an Internet access service or telephone service. A threat to the public interest can only exist if the controlling interest leads to ‘relevant influence’ in the telecommunications sector. Relevant influenceĪ transaction can only be blocked if there is an imminent ‘threat to the public interest’. Controlling interestĪ ‘controlling interest’ exists if the party after the acquisition has, for example, at least 30% of the votes in the general meeting of a legal person or if it can appoint or dismiss more than half of the managing directors or supervisory directors of a legal entity, or if it has a special statutory right of control. To date, no such Governmental order was published. Furthermore, an additional category of networks or services may be designated as a telecom party subject to the Act by a Governmental order ( Algemene Maatregel van Bestuur). Data centres which are solely or primarily for personal use are not covered by the Act. It can apply to a branch office or a legal entity, sole proprietorship ( eenmanszaak) or a company established in the Netherlands that is a provider or holder of a controlling interest in a supplier of an electronic communications network or service, a hosting service, an Internet node, a trust service or a data centre. The definition ‘telecom party’ also includes parties other than providers of telecommunications networks and services. The notification requirement does not apply to so-called anti-takeover foundations, which are generally intended to prevent undesired takeovers. ![]() The Minister shall then decide within eight weeks whether the transaction will be prohibited although this period can be extended if further investigation is required. If the intention regards a public offer with respect to a listed telecom party, the notification must be made not later than at the time of announcement of the public offer. The notification must be submitted to the Minister not later than eight weeks before the envisaged execution of this intention. The Act stipulates that a party that has the intention to acquire ‘a controlling interest’ in a ‘telecom party’ must notify this to the Minister if that control leads to ‘relevant influence’ in the telecommunications sector. ![]() In this article, a bird’s-eye view of the Act and the potential overlap with merger notification procedures under competition law is provided. The Act is of relevance to anyone wishing to acquire control in a Dutch telecom provider, hosting service, Internet node, trust service or data centre. While the Act was prompted by the attempt to takeover KPN by América Móvil in 2013, the Act has wider implications as it affects not only KPN but also other parties. ![]() The purpose of the Act is to prevent the acquisition of controlling interests in telecom parties if this may threaten the public interest in the Dutch telecommunications sector. If the controlling interest may result in a ‘threat to the public interest’, the Dutch Minister of Economic Affairs and Climate Policy (“ Minister”) shall prohibit the acquiring or holding of such controlling interest or impose a ban subject to suspensive conditions. The Act introduces a notification requirement applicable to anyone who has the intention to acquire ‘a controlling interest’ in a ‘telecom party’ if such interest results in ‘relevant influence’ in the telecom sector. On, the Act against undesired control in the telecom sector (“ Act“) was adopted by the Dutch Parliament. ![]()
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