The acquisition (Transaction) of Quironsalud by Fresenius Helios had been initially notified to the European Commission, who referred the Transaction to the SCA under Article 9 of the EU Merger Regulation. On 22 December 2016, the SCA issued its phase I decision authorizing the Transaction without commitments. Two separate relevant markets were affected by the merger: (i) the market for health and private hospital care in Spain; and, (ii) the market for the supply of medical and pharmaceutical products to hospitals.
(i) With regard to the market for health and private hospital care in Spain, the Transaction leads to no overlap, other than in the provision by private operators of haemodialysis treatments for public patients in certain regions.
(ii) In relation to the supply of medical and pharmaceutical products, the Transaction has vertical effects since Fresenius Group is active in the upstream market while Quiron is active in the downstream market.
The SCA considered the possibility that Fresenius could benefit from Quiron’s position in the downstream market as a purchaser accessing sensitive commercial information from other suppliers; the SCA also considers the possibility that the vertically integrated entity, with considerable market shares in some markets upstream, might have incentives to foreclose other hospital businesses; a third party competitor of Fresenius (B.Braun) also voiced concerns that the vertical integration post-merger could be used to discriminate in favour of Fresenius in the purchasing of hospital supplies even by the public sector hospitals, which may employ doctors who would also be employees of Quiron simultaneously. These concerns were dismissed given that, downstream, Fresenius has a reduced market share in the procurement markets (the SCA did not segment the purchasing market between private hospital and public hospital demand); regarding the allegation that many medical practitioners are employed simultaneously in the private sector (Quiron) and the public sector (participating in the procurement decisions of the latter) this is dismissed on the grounds that public procurement law ensures objectivity in the purchasing decision-making process.