ACM Blocks Glaspoort/KPN Acquisition of Delta Fiber Assets: Dutch Merger Control and Deal Certainty

Why this Dutch telecom decision matters for transaction planning

The Dutch Authority for Consumers and Markets (the ACM) has blocked the proposed acquisition by Glaspoort of parts of Delta Fiber Nederland’s fibre-optic networks. Glaspoort is a joint venture between KPN and APG. The decision is important beyond the telecom sector because it shows how Dutch merger control can affect deal certainty, remedies, timing and transaction documentation. See the ACM announcement.

For foreign buyers and investors, the practical lesson is not only that competition approval may be required. The more important point is that Dutch merger control risk must be translated into the LOI, SPA and closing mechanics from the beginning of the deal process.

In sectors with network effects, infrastructure assets, access bottlenecks or concentrated local markets, a transaction may look strategically logical but still face prohibition risk. If that risk is not properly allocated, parties may end up with a signed deal that cannot close, or with a dispute over who bears the regulatory failure.

This article explains the practical M&A lessons from the blocked Glaspoort/KPN and Delta Fiber transaction for foreign buyers, sellers and investors in Dutch regulated or infrastructure-heavy markets.

This insight is part of the ViottaLaw series on Dutch M&A deal practice, investing in and through the Netherlands and Dutch transaction implementation for international buyers.

Merger control is not a closing formality

Foreign buyers sometimes treat Dutch competition review as a procedural step between signing and closing. That is too narrow.

Merger control can affect whether the transaction can close at all, whether remedies are required, whether the buyer must accept behavioural or structural commitments, and whether the seller remains locked into a transaction for a long period.

In the Glaspoort/Delta Fiber situation, the ACM did not merely impose conditions. It prohibited the acquisition. That is the most severe outcome and should remind deal teams that antitrust risk is a core transaction risk, not only a regulatory workstream.

Where there is overlap between buyer and target, control over essential infrastructure, local market concentration or third-party access concerns, the competition analysis should be part of the transaction structure before signing.

What should be addressed in the LOI?

A Dutch M&A LOI should identify whether ACM approval may be needed and who carries the regulatory risk.

At LOI stage, parties should address whether signing is subject to preliminary merger control analysis, whether exclusivity is conditional on a credible regulatory path, who prepares the filing, who controls the remedy strategy and whether the buyer must accept remedies.

Sellers should be careful not to give exclusivity to a buyer whose regulatory risk is high without clear timing discipline. Buyers should be careful not to sign a broad obligation to obtain approval “at all costs” if remedies could undermine the deal rationale.

The LOI should also address the long-stop date. A short long-stop may be unrealistic if the ACM review becomes complex. A long long-stop may expose the seller to unnecessary process risk.

Conditions precedent and regulatory failure

If Dutch merger control clearance is required, the SPA should include a clear condition precedent. Closing should not occur until clearance has been obtained or the relevant waiting period has expired.

The drafting question is what counts as clearance. Is unconditional approval required? Are remedies acceptable? If remedies are imposed, who decides whether they are commercially acceptable?

In competitive sectors, this matters. A remedy may preserve formal deal feasibility but destroy the buyer’s business case. For example, a required divestment, access obligation or operational restriction can materially change the value of the transaction.

The SPA should therefore distinguish between acceptable commitments and burdensome regulatory conditions. A buyer may agree to use reasonable best efforts, but not to accept any remedy regardless of cost or strategic impact.

Seller risk: being trapped in a blocked process

For sellers, regulatory risk can be commercially damaging. During a long review process, the seller may be restricted by interim covenants, unable to pursue other bidders, and uncertain about closing.

If the regulator ultimately blocks the transaction, the seller may have lost time, market momentum and alternative exit opportunities.

That is why sellers should consider reverse break fees, ticking fees, termination rights, buyer cooperation obligations and strict milestones for filings and responses.

The seller should also avoid giving the buyer too much control over remedy negotiations if the outcome affects the seller’s remaining business or assets.

Buyer risk: remedies and integration delay

For buyers, the main risk is signing a transaction without sufficient visibility on the regulatory path.

A buyer should consider whether the acquisition creates local market concentration, strengthens an existing network position, affects third-party access, or removes a competitive constraint.

The buyer should also assess how long it can tolerate delayed closing. Integration plans, financing, synergy timing, management retention and customer communications may all be affected by a prolonged review.

Competition risk should therefore be linked to financing conditions, integration planning and internal approval processes.

Drafting points for Dutch M&A documentation

In transactions with potential ACM risk, the SPA should deal with filing responsibility, cooperation obligations, information sharing, remedy strategy, long-stop date, interim covenants, termination rights and allocation of costs.

Parties should also decide who controls communications with the ACM, whether the seller may participate in remedy discussions and what happens if the buyer refuses to accept conditions.

The clause should be practical. A generic “competition clearance condition” may not be enough where prohibition risk is real.

Dutch market insight for foreign buyers

The Netherlands is an open M&A market, but that does not mean all transactions are easy to clear. Dutch regulators may look closely at infrastructure, telecom, digital markets, healthcare, energy, technology and other sectors where access, concentration or public interest concerns are relevant.

For foreign buyers, the practical lesson is to localise the antitrust analysis. A deal that looks manageable from an international perspective may raise specific Dutch market issues.

This is particularly relevant where the target owns infrastructure, data, customer access, platform positions or local market share.

Conclusion

The ACM’s prohibition of the Glaspoort/KPN acquisition of Delta Fiber assets is a reminder that Dutch merger control can directly affect transaction certainty.

For foreign buyers, sellers and investors, the key is early planning. Regulatory risk should be analysed before signing, reflected in the LOI and translated into specific SPA provisions on conditions precedent, remedies, long-stop dates and termination rights.

Merger control is not a footnote to the deal. In regulated or concentrated markets, it can determine whether there is a deal at all.

FAQ

Is ACM clearance always required for Dutch acquisitions?

No. ACM clearance depends on merger control thresholds and the nature of the transaction. But in concentrated or regulated sectors, the analysis should be made early.

Can the ACM block a transaction completely?

Yes. If the ACM concludes that competition concerns are not resolved, it may prohibit the transaction.

Should ACM risk be addressed in the LOI?

Yes. The LOI should allocate responsibility for the filing, timing, regulatory efforts and consequences if clearance is not obtained.

What is a regulatory condition precedent?

It is a closing condition stating that the transaction cannot close until the required regulatory clearance has been obtained.

Who bears remedy risk in a Dutch M&A transaction?

That depends on the SPA. The agreement should specify whether the buyer must accept remedies and where the limit lies.

About Dirk de Waard

Dirk de Waard is a Dutch corporate and M&A lawyer and partner at Venture Lawyers in Amsterdam. He advises foreign buyers, sellers, investors and companies on Dutch M&A transactions, regulatory conditions, SPAs, merger control risk allocation and deal implementation.

Structuring regulatory risk in a Dutch transaction?

In Dutch M&A, competition risk can affect signing, closing, long-stop dates, remedies and termination rights. The key is to identify regulatory risk early and translate it into the LOI and SPA.

Dirk de Waard advises foreign buyers, sellers and investors on Dutch M&A transactions and regulatory risk allocation. Contact Dirk at dirk.dewaard@viottalaw.com to discuss the Dutch legal implementation of a proposed acquisition or investment.