In its judgment of 17 December 2015, the District Court of Rotterdam ("District Court") annulled the decision of the Netherlands Authority for Consumers and Markets ("ACM") in which it imposed a fine on the Dutch Association of General Practitioners (Landelijke Huisartsen Vereniging; "LHV") for violating the Dutch cartel prohibition. Specifically, the Court found that the ACM had failed to substantiate how LHV's behaviour had the object of restricting competition.
LHV is a professional association accounting for 95% of Dutch general practitioners. In a decision of December 2011, the ACM held that LHV restricted competition by adopting recommendations on the establishment of new general practitioners. In these recommendations LHV advised its members to periodically examine whether a demand for new general practitioners exists and whether the local amount of patients justified the opening of a new practice. In this respect, LHV advised its local associations to "address permanent overcapacity of practitioners". LHV also advised its members to integrate this assessment in the application procedure for new local practitioners. The ACM held that these recommendations constituted a decision from an association of undertakings having the object to restrict competition.
The ACM initially imposed a fine of EUR 7.7 million on LHV and also fined two of its executives. In its decision on LHV's administrative appeal of February 2014, the ACM reduced the fine imposed on LHV to EUR 5.9 million and revoked the fines imposed on LHV's executives [see our March 2014 newsletter].
Following an appeal from LHV, the District Court assessed whether LHV's recommendations constituted a restriction of competition by object. The District Court noted that the recommendations did not explicitlyrecommend addressing potential overcapacity of general practitioners through restrictive practices. The recommendations also did not contain any indication concerning an allowed number of patients per practitioner or an allowed number of practitioners. Therefore, the District Court disagreed with the ACM's reasoning that the recommendations entailed a quantitative restriction of competition. In addition, considering the relevant economic context, the District Court found that during the period of the infringement, health care insurers effectively had decisive influence on the admission of general practitioners. Consequently, LHV members could not have exerted restrictive influence on the establishment of new practitioners through their application procedures.
The District Court concluded that the recommendations, taking into account their wording, aim and economic context, did not constitute an object infringement. The judgment shows that Dutch courts are willing to critically assess the qualification of an alleged infringement as a restriction by object. The District Court's reference to the European Cartes Bancaires case [see our October 2014 newsletter] highlights that Dutch courts pay close attention to European developments in this respect.