Articles

Rotterdam Court annulled cartel fine imposed on Dutch Association of General Practitioners

Rotterdam Court annulled cartel fine imposed on Dutch Association of General Practitioners

Rotterdam Court annulled cartel fine imposed on Dutch Association of General Practitioners

05.01.2016 NL law

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 explicitly recommend 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.

This article was published in the Competition Law Newsletter of January 2016. Other articles in this newsletter:

Team

Related news

01.08.2018 EU law
Belgian Court of Cassation annuls decision prohibiting pharmacists from using Google Adwords

Short Reads - On 7 June 2018, the Belgian Court of Cassation, ruled that a decision of the Pharmacists Association Appeals Council (Appeals Council) prohibiting pharmacists from using Google Adwords to offer over-the-counter (OTC) products violated Belgian competition law because the Appeals Council did not sufficiently justify why such a prohibition was necessary for health reasons. The Appeals Council must now issue a new decision.

Read more

01.08.2018 EU law
General Court underlines importance of Commission's duty to state reasons

Short Reads - On 13 July 2018, the General Court annulled the EUR 1.13 million fine imposed on Stührk Delikatessen Import GmbH & Co. KG (Stührk) by the European Commission in 2013 for Stührk's participation in the shrimp cartel. The Court ruled that the Commission had failed to adequately state reasons in the contested decision as to why the cartel participants were granted divergent fine reductions.

Read more

01.08.2018 EU law
Court of Appeal in the Netherlands decides to appoint independent economic experts in TenneT v ABB

Short Reads - On 20 July 2018, the Court of Appeal of Gelderland published another interim judgment in the ongoing proceedings between TenneT, the grid operator in the Netherlands, and ABB in relation to the gas insulated switchgear (GIS) infringement. After the Dutch Supreme Court had confirmed in a judgment of 8 July 2016 [see our August 2016 Newsletter] that the passing-on defence is available under Dutch law, the Court of Appeal of Gelderland decided to appoint independent economic experts to provide input on the calculation of overcharge and the existence of pass-on.

Read more

Our website uses cookies: third party analytics cookies to best adapt our website to your needs & cookies to enable social media functionalities. For more information on the use of cookies, please check our Privacy and Cookie Policy. Please note that you can change your cookie opt-ins at any time via your browser settings.

Privacy – en cookieverklaring