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

07.11.2019 NL law
Tackling Big Tech up-front? Time to stop thinking and start acting

Short Reads - Benelux competition authorities have published a joint memorandum on how best to keep up with challenges in fast-moving digital markets. As well as calling on the European Commission to issue an economic study on digital mergers, the memorandum calls for an ex ante intervention tool to fill the gap between interim measures and ex post enforcement. This tool would pre-emptively impose behavioural remedies on digital gatekeepers without first having to establish an actual competition law infringement.

Read more

08.11.2019 BE law
Interview with Wouter Ghijsels on Next Gen lawyers

Articles - Stibbe’s managing partner Wouter Ghijsels shares his insights on the next generation of lawyers and the future of the legal profession at the occasion of the Leaders Meeting Paris where Belgian business leaders, politicians and inspiring people from the cultural and academic world will discuss this year's central theme "The Next Gen".

Read more

07.11.2019 NL law
Rotterdam District Court rules that claims in elevator cartel damages proceedings need further substantiation

Short Reads - The Rotterdam District Court has ordered claimant SECC (a litigation vehicle) to substantiate its claims in proceedings against Kone and ThyssenKrupp regarding the elevator cartel. The Court also ruled that some claims have become time-barred, unless SECC can show that these were timely assigned to SECC and notified to Kone and ThyssenKrupp. The Court rejected several defences of Kone and Thyssenkrupp, including a jurisdictional challenge based on arbitration clauses between the defendants and assignors of claims to SECC.

Read more

07.11.2019 NL law
Safeguarding legal privilege: better safe than sorry?

Short Reads - The European Court of Justice recently ruled that the European Commission does not have to take additional precautionary measures to respect the right of legal professional privilege when conducting a new dawn raid at the same company. Companies are well-advised to mark clearly all communications covered by legal privilege as 'privileged and confidential' and to keep all privileged communication separate from other communication.

Read more

Our website uses functional cookies for the functioning of the website and analytic cookies that enable us to generate aggregated visitor data. We also use other cookies, such as third party tracking cookies - please indicate whether you agree to the use of these other cookies:

Privacy – en cookieverklaring