Transport and logistics

A Dutch undertaking carrying goods by road for hire and reward requires a Community licence, the Eurovergunning, issued under the Wet wegvervoer goederen and the European rules on admission to the occupation of road transport operator. The licence is granted to the undertaking on the basis of stable establishment, good repute, financial standing and the professional competence of a designated transport manager, and it is not a transferable asset. In a share transaction the licence holder remains the same legal entity, so the licence continues, but changes to the registered data, including the transport manager, must be notified and the good repute and competence assessments can be reopened. In an asset transaction or a legal merger the licence does not pass automatically and the acquiring entity needs its own licence, which turns the application into a gating item on the timetable rather than a post-closing formality.

The same logic applies more widely across the sector. Ground handling at Dutch airports operates within a framework derived from the European airport services rules, under which access to the market for certain restricted categories can be limited and suppliers are selected by, or require the approval of, the airport managing body, with airside access itself dependent on passes and screening administered by the airport operator. Port and terminal activities are typically conducted under concessions, operating agreements and long-term ground leases granted by port authorities, which commonly contain change-of-control provisions and consent requirements. Waste, dangerous goods, customs and environmental permissions run on their own tracks. Establishing which permissions the target holds, in which entity, and on what conditions is therefore the first substantive workstream rather than a chapter of the due diligence report.

Labour is the largest cost line in most operators and a frequent source of retrospective exposure. The collective labour agreement for road haulage has been declared universally binding for extended periods, which means that it applies to employers within its scope by operation of law and irrespective of membership, and participation in the sector pension fund operates on a comparable mandatory basis. Where a target has treated itself as falling outside scope, the correction is retrospective and covers wage differences, pension contributions and, in some cases, interest and surcharges. Driving and rest time rules, tachograph obligations and the working time rules for transport add a compliance record that a buyer will want to see rather than take on warranty.

Classification is the second labour question. The Supreme Court made clear in the Deliveroo case that the existence of an employment relationship is assessed on all the circumstances of the working relationship taken together, rather than on the description the parties have given it, and the tax authorities enforce against false self-employment. In last-mile and courier operations, where self-employed couriers and subcontracted delivery partners are common, a reclassification affects a population rather than an individual, and the wage tax, social security, pension and collective agreement consequences accumulate over the period concerned. Chain liability for wages extends the analysis to the subcontracting layer beneath the target.

The distinction between asset-owning and asset-light operators runs through the whole transaction. In an asset-heavy target the weight of the due diligence goes to the fleet and the property: how vehicles and equipment are held, whether operating leases contain change-of-control provisions, early termination charges or end-of-term return conditions triggered by the transaction, whether a sale-and-leaseback has moved economic risk in a way the accounts and the contracts describe differently, and where residual value risk actually sits. Security arrangements deserve the same attention, since the tax authorities' floor right (bodemrecht), which in certain circumstances gives recourse to movable assets on the operator's premises for wage tax and VAT among other taxes, affects lessors and secured lenders in a way that is specific to Dutch law.

In an asset-light target the contract book carries the value, and the questions are the ones that determine whether it survives a change of ownership: contract duration and notice, volume commitments or their absence, indexation and fuel or energy clauses, liability and the applicable carriage regime, and change-of-control provisions in the concessions and long-term contracts that carry the largest volumes. Transferring a contract under art. 6:159 DCC requires the counterparty's cooperation, so a carve-out or asset transaction converts the contract book into a consent exercise. Where several operators are combined across the Netherlands, Belgium and Germany, these positions have to be resolved in each jurisdiction before a single closing agenda can be built.

• Road haulage for hire and reward requires a Eurovergunning under the Wet wegvervoer goederen, granted to the undertaking on the basis of establishment, good repute, financial standing and professional competence, and it does not transfer with a business in an asset transaction.
• Cabotage by a non-resident operator is limited to a defined number of operations within a set period following an incoming international carriage, followed by a cooling-off period, and the posting rules for drivers apply alongside the cabotage rules.
• The collective labour agreement for road haulage has been declared universally binding for extended periods and applies within its scope by operation of law, with mandatory sector pension participation on a comparable basis, so scope findings operate retrospectively.
• Employees within a transferring undertaking pass to the buyer by operation of law under artt. 7:662 e.v. DCC, which also applies where an identifiable economic entity retains its identity on a change of service provider in labour-intensive operations.
• The tax authorities' floor right (bodemrecht) gives recourse in certain circumstances, for wage tax and VAT among other taxes, to movable assets on the operator's premises, which affects lessors, financiers and sale-and-leaseback structures in asset-heavy targets.
• Share transfers require a notarial deed (art. 2:196 DCC), transfers of shares in a German GmbH require notarisation under German law and Belgian transfers have their own formalities, including entry in the share register, so a three-country closing is sequenced rather than simultaneous.
• Screening under the Vifo Act can apply where the target qualifies as a vital provider, which in this sector concerns a limited number of specifically designated undertakings, such as those around airports and ports, so the position is tested rather than assumed.
• Works council consultation under the WOR applies in the usual way, and zero-emission zones for urban logistics introduced by a number of Dutch municipalities affect fleet replacement planning and therefore capital expenditure assumptions.