At the end of 2011, the Netherlands Authority for Consumers and Markets ("ACM") imposed a fine on the National Association for General Practitioners (Landelijke Huisartsen Vereniging, "LHV") for infringing the Dutch Competition Act. Additionally, the ACM also fined two board members of LHV in relation to the infringement for de facto leading the infringement. LHV appealed the decision. The ACM rendered its decision on appeal on 3 February 2014.
In its 2011 decision leading to the fine, the ACM held that LHV restricted competition by adopting recommendations relating to the establishment of new general practitioners in which it advised its members to examine (i) whether a demand for new general practitioners exists and (ii) whether the amount of patients required the opening of a new family practice. Subsequently, new general practitioners had to be selected by means of an application procedure. The recommendations were qualified as decisions by an association of undertakings which have as their object the restriction of competition on the market for general practitioners.
On appeal, the ACM confirmed that LHV's behaviour constitutes a quantitative restriction of competition, because it directly affects the supply of goods and/or services on the market. Consequently, the patient's freedom of choice is restricted. The application procedure further restricts market entry, because it aims at conforming new general practitioners to the practice of the current general practitioners. The mere fact that some general practitioners have proven to be able to freely establish themselves, does not mean that competition is not unlawfully restricted.
As regards the fines imposed on the board members of LHV for de facto leading the infringing behaviour, the ACM firstly states that the adoption and publication of the recommendations took place over a long period of time. During this period, several people within LHV dealt with the topic of the establishment policy (vestigingsbeleid) in different ways and to a different extent. Therefore, the ACM considers it less appropriate that two natural persons are being held liable in addition to LHV. The ACM repealed the fines imposed on LHV's board members. As a result, the initial 5% increase of LHV's fine for standing surety for the board members' fines was abandoned.
Lastly, the ACM decided to decrease the severity factor from 2.5 to 2.0. The ACM considered that in view of the fines imposed in previous health care cases, adjustment of the severity factor in the present case is appropriate. Furthermore, the ACM states that the role of health insurers must be taken into account, for they could have been more watchful with respect to the competition restricting conduct of the general practitioners. Eventually, LHV's fine was decreased from EUR 7.719.000 to EUR 5.907.000.
