Netherlands: The Healthcare Sector Under Scrutiny

The healthcare sector is one of the NMa's focus industries, which means it is subject to closer investigation. The NMa recently blocked the planned merger between two healthcare providers in central Netherlands1 and required a second phase investigation into three intended healthcare mergers. The reduction in capacity laid down in the recently concluded "Outline agreement" between healthcare providers, health insurers and the Ministry of Health, Welfare and Sport, however, appears to have the NMa's blessing.

Healthcare mergers

Unlike EU merger control, Dutch merger control has special (lower) notification thresholds for healthcare concentrations since 2008. And despite many healthcare concentrations falling outside the "regular" concentration thresholds due to the low turnovers involved, this could still have a negative impact on competition as a result of the often narrow scope of the relevant geographic markets. The lowering of the thresholds has led to a dramatic increase in the number of healthcare mergers reviewed by the NMa.2 Of the 150 notifications the NMa has reviewed in the healthcare sector since 2004, eight intended notifications were withdrawn and eight potential merger plans were adjusted to resolve the NMa's antitrust concerns.3

In accordance with its policy rules for mergers between healthcare providers,4 the NMa's assessment of healthcare concentrations usually focuses on four issues: (i) transparency of the quality of the healthcare, (ii) clients' travel behaviour, (iii) potential entry of new healthcare providers and (iv) health insurers' impact on the choices clients make. The merger that was blocked involved two providers of, among other services, nursing home care in a region in central Netherlands. According to the NMa's investigation, the two healthcare providers were each other's closest competitors with patients often choosing local providers. The merger would thus have affected the quality of healthcare services since the two healthcare providers would no longer have been stimulated to differentiate themselves from each other through e.g. innovation.

Reduction in capacity in the Outline agreement

Most hospitals in the Netherlands offer a wide range of specialist care. The recently concluded Outline agreement between healthcare providers, healthcare insurers and the Ministry of Health, Welfare and Sport aims to concentrate this specialist care among hospitals in order to achieve better quality for less costs. The NMa supports concentration of specialist care as long as it is under either the health insurers' direction or constitutes an independent decision by the respective hospitals.5 Independent decisions by health insurers or hospitals will generally not come under competition law scrutiny. By determining which hospital offers what specialist care, health insurers will be able to safeguard the quality and availability of healthcare for their policyholders. Similarly, hospitals are free to decide independently whether and how to concentrate their specialisations without bumping into the competition rules. However, specialisation agreements concluded between the hospitals themselves would be caught by the cartel prohibition, as these would limit patients' options and would thus result in a restriction of competition. The NMa has published a flow chart to help the healthcare sector manoeuvre between the reduction in capacity mentioned in the Outline agreement and the competition rules.6

Footnotes

1. See the NMa press release of 20 December 2011.

2. See the NMa press release of 20 December 2011.

3. See the NMa press release of 20 December 2011.

4. Beleidsregel van de Minister van Economische Zaken van 9 september 2009, houdende bijzondere regels betreffende concentraties van zorgaanbieders, State Gazette 2009, no13389.

5. See the NMa press release of 2 March 2011.

6. NMa press release of 21 December 2011.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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