The healthcare sector is likely to stay on the radar of the Authority for Consumers and Markets (ACM). Not only has the application of the separate notification thresholds for concentrations in the healthcare sector been extended by another five years, but the number of hospitals intending to merge is also rising: the ACM expects a minimum of seven hospital mergers during 2013 and has designated the healthcare sector as a priority. The bargaining power of health insurers appears to be a significant factor in the ACM's merger assessment and recently resulted in a rather unusual solution in the clearance of three hospital mergers. The minister has indicated that the increase in scale requires a 'concentration-effects' test by the Dutch Healthcare Authority, in addition to concentration control and an amendment of the policy rules on concentrations between healthcare providers in order to include concentrations between health insurers.

In October 2012 the minister of economic affairs announced that the lower merger notification thresholds for healthcare mergers, scheduled to be repealed on January 1 2013, will continue to apply for another five years. Many healthcare concentrations fall outside the 'regular' notification thresholds due to the healthcare companies' low turnovers. However, these concentrations may still have a negative impact on competition due to the often narrow scope of the relevant geographic markets involved. This is particularly detrimental to the healthcare sector as it is still in transition to a demand-driven system. The lower notification thresholds are aimed at resolving this problem by bringing more healthcare concentrations under the ACM's scrutiny through notification. According to the minister, the Competition Authority (now the ACM)(1) has reviewed twice as many concentrations in the past four years as it would have done without the lower healthcare notification thresholds. A number of these concentrations had (potential) anti-competitive effects, thus proving the effectiveness of the lower thresholds.

Therefore, healthcare organisations will still need to notify the ACM of concentrations if in the previous calendar year:

  • at least two of the companies concerned each generated a turnover of more than €5.5 million by providing healthcare services;
  • the combined worldwide turnover of the companies concerned exceeded €55 million; and
  • at least two of the companies concerned each achieved a turnover in the Netherlands of at least €10 million.

According to the minister of health, welfare and sport, however, healthcare mergers should be subject to a stricter scrutiny than merger control alone. In order to safeguard the quality and continuity of healthcare, a concentration-effects test – to be carried out by the Dutch Healthcare Authority – should be introduced for intended healthcare concentrations before the ACM's merger control assessment. In addition, the policy rules on mergers between healthcare providers should be extended to include concentrations between healthcare insurers in order to oblige the ACM to substantiate its market delimitation extensively.

The more stringent scrutiny of healthcare mergers through additional tests and lower merger thresholds seems to be at odds with the ACM's clearance of three hospital mergers in November 2012 on the basis of a self-imposed annual price ceiling instead of an official remedy. Due to the price ceiling's voluntary nature, the ACM has no legal basis for enforcing compliance, but intends to hold the hospitals publicly accountable for any quality decrease or excessive price increase resulting from the mergers. However, the ACM is confident that the health insurers' bargaining power will guarantee the best possible price-quality ratio, thus leaving the price ceiling to act as a safety net only. In 2012 the Cabinet gave health insurers a leading role in the healthcare system by providing them with more opportunities and incentives to buy at competitive prices. According to Henk Don, member of the ACM board, the health insurers "have already demonstrated that they are able to influence the market by focusing on health care quality. The insured thus benefit directly".

For further information on this topic please contact Jolling De Pree, Erik H Pijnacker Hordijk or Jaap de Keijzer at De Brauw Blackstone Westbroek by telephone (+31 70 328 53 28), fax (+31 70 328 53 25) or email (jolling.depree@debrauw.com, erik.pijnackerhordijk@debrauw.com or jaap.dekeijzer@debrauw.com).

Endnotes

(1) The Competition Authority, the Netherlands Consumer Authority and the Dutch Independent Post and Telecommunications Authority joined forces on April 1 2013, creating the Netherlands Authority for Consumers and Markets.