Benelux Competition Law in 2025: Five things you need to know

In 2025, we expect the trend of stricter merger control to continue across the Benelux – including an increasing focus on merger control outside traditional thresholds. Following the 2024 Illumina/Grail judgment that put an end to the Commission's recent policy to review below-threshold mergers under Article 22 EUMR, the Commission and NCAs are keen to close the perceived enforcement gap. The means and approach favoured by the National Competition Authorities (NCAs) will, however, most likely differ.

In the Netherlands, the chairman of the Authority for Consumers and Markets (ACM) is very vocal on the need for new and better tools to review so-called “killer acquisitions” and “roll-up mergers”. The Dutch Minister of Economic Affairs is currently exploring options for the ACM to tackle these types of acquisitions, such as an asymmetric turnover threshold combined with a call-in power, , enabling the ACM to request the notification of certain below-threshold concentrations. We expect any new powers to contain clear criteria.

To benefit consumers and boost innovation, the Dutch ACM also favours the introduction of a New Competition Tool (NCT) in line with the recommendations made in the “Draghi Report”. Such NCT gives authorities the power to carry out market investigations and impose measures to tackle certain structural competition issues. Legislative proposals to revamp Dutch competition law may be expected in the first quarter of 2025. Once the updated regulations apply (likely not before 2026), we expect a shift towards more public enforcement.

In Belgium, 2025 already saw the Belgium Competition Authority (BCA) announcing various investigations: into a concentration in the artisanal flour business (based on the Towercast doctrine and 101 TFEU) and into AB Inbev in relation to its supply chain for beer products (under 101 and 102 TFEU).

Luxembourg is currently the only Member State where an article 22 referral remains possible following the Illumina/Grail judgment. We announced in earlier editions of the ‘5 things’ that Luxembourg was aiming for a merger control regime, however this seems to be stuck in the legislative process. Luxembourg NCA’s article 22-referral of the concentration of Brasserie Nationale and Munhowen, currently pending before the General Court, will put the scope of this referral practice – local, national, or European – further to the test.

We expect significant changes to national foreign direct investment (FDI) regimes across the EU, also in light of the rapidly changing geopolitical landscape. These changes may imply scrutiny in more sectors and a potentially much bigger role for the Commission:

• The Commission proposed a substantial overhaul of the EU Foreign Direct Investment Screening Regulation (entry into force not expected before the end of 2025). The Commission seeks expanded – and far-reaching – powers, including ex officio investigation powers, the possibility to issue fines, and the authority to intervene in unresolved cases among Member States. Potential changes include minimum requirements for assessment criteria for foreign investments, screening of (indirect) non-EU ultimate beneficial owners (UBOs), mandatory screening of specific sectors, and screening of greenfield investments (albeit without a mandatory filing). It remains to be seen whether Member States are willing to grant these powers, not in the least because national security is at stake.
• Outbound investments in strategic technologies – semiconductors, artificial intelligence, and quantum technologies – could face new scrutiny to prevent key knowhow falling into the wrong hands and safeguard EU economic security. The Commission’s Recommendation does not yet make clear whether its legislative proposal will mirror the outbound screening for investments into China as recently introduced by the US.
• The Belgian authority, the Investment Screening Committee (the ISC) is planning a further streamlining of their procedure and even easier digital submission of filings. With one of the fastest regimes in the EU – approx. 30 calendar days for a Phase I decision – it is relevant to note that the ISC does not issue out-of-scope letters, but rather assesses a submitted filing on the merits within the given timeframe.
• In the Netherlands, an extension of the sectors in scope of the FDI regime was open for consultation until 31 January. Proposed additions to the list of highly sensitive technologies are advanced materials, artificial intelligence, biotechnology, nanotechnology, sensor and navigation technology, nuclear technology for medical use, and certain specified goods from the EU dual-use Regulation 2021/821. This expansion of relevant sectors shows that the Netherlands starts to look into other national security consideration, beyond the more traditional dual or military use of certain technologies.
• In Luxembourg, several deals have been notified and the processing of the notifications goes swiftly. A welcome possibility is that when there are doubts as to the notifiability of certain activities (e.g. in the field of IT), the competent authority is willing to issue an ‘out of scope’ letter. Nevertheless, the Luxembourg FDI law is unclear to what extent acquisitions done by EU-companies with significant non-EU stakes upstream must be notified. Further clarification is expected following the entry into force of the new EU FDI Regulation.

Across the Benelux, we expect more serious Digital Markets Act (DMA) and Digital Services Act (DSA) enforcement in 2025, including the first DSA investigations in the Netherlands and Belgium. Rumour has it that the Commission is doubling its DMA and DSA enforcement staff – signaling a significant effort to curb the gatekeepers’ power. Meanwhile, private DMA enforcement is emerging as a key tool in curbing Big Tech’s power, even in the Commission’s view.

Parties that are – potentially – affected by gatekeepers’ DMA breaches can seek court injunctions or claim damages. We expect this trend to gain traction in 2025, also in view of the Commission’s currently limited enforcement resources. Germany has already incorporated DMA private enforcement into its national law, with early cases reportedly filed against an unnamed gatekeeper. Benelux developments that we are closely following include:

• A draft bill pending in the Netherlands – that is expected to be approved – not only enables the ACM in DMA cases but also aims to enable national courts to intervene in DMA application.

We expect to see – even – more private DMA enforcement and so-called ‘hybrid’ cases combining the DMA and 102 TFEU. The Netherlands remains an attractive forum for competition damages claims, with claimants stand to benefit, for instance, from certain claim side friendly aspects of Dutch procedural law and the possibility for collective redress.

• The Belgian Competition Authority also clearly pre-empts private DMA enforcement, particularly for ‘tech challengers’. We are curious to see whether private practice will follow the BMA’s guidance.
• In Luxembourg, the NCA seems to have prioritised its new competence under the DMA and the DSA. We expect Luxembourg to become an interesting venue for DMA private enforcement, even though the first known case against a gatekeeper has yet to happen there. Specifically: in other fields, numerous claims are already being brought against Amazon, that has its EMEA headquarters in Luxembourg.

In summary, with increasing legal activity and national courts asserting their role, in 2025 private enforcement is set to complement public efforts in making the DMA and the DSA effective.

The European Commission continues to refine the enforcement of the Foreign Subsidies Regulation (FSR). No new Commission FSR guidelines are expected until 2026. In 2025, a first glimpse of what is next for the FSR includes:

• Notably, given its first clearance decision for the acquisition of PPF Telecom by e& under the FSR, the Commission appears more focused on mitigating competition distortions through behavioral remedies rather than outright prohibiting investments benefiting from foreign subsidies.
• Additionally, the Court of Justice of the European Union (CJEU) will likely provide clarity on FSR notification requirements (both concentrations and public procurement), easing compliance challenges for companies. While information requests of the Commission are and will remain notoriously large and complex, companies will have more clarity regarding the information they are required to provide.

Against the backdrop of ongoing political unrest, the Commission is gearing up to address crises, drive green and digital transformations, and ensure fair competition within the single market in 2025. With state aid and government investments as cornerstones of the Commission’s strategy, the landscape of state aid law and policy in the EU is poised for significant evolution.

For the year ahead, we expect the Commission to prioritise approving state aid measures that are in line with the goals of its new state aid review framework as announced by Commissioner Ribera: to “accelerate the rollout of renewable energy, deploy industrial decarbonization, and ensure sufficient manufacturing capacity of clean tech”. It will provide more flexibility for Member States to quickly provide state aid in support of these goals by simplifying and speeding up state aid assessment procedures (especially for aid granted to Important Projects of Common European Interest or “IPCEIs”). This trend was already evident in the state aid measures approved by the Commission at the end of 2024 with a focus on semiconductors, decarbonisation, and renewable energy. As a result, in 2025 clean and sustainable (high) tech, decarbonisation, and renewable energy companies will have more opportunities to accelerate new and innovative initiatives with government support.