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

02.04.2020 NL law
ACM played high stakes and lost: no more fixed network access regulation

Short Reads - The ACM’s failure to meet the requisite standard of proof has led to the fixed networks of Dutch telecom providers KPN and VodafoneZiggo being free from access regulation. The Dutch Trade and Industry Appeals Tribunal ruled that the ACM had failed to demonstrate the existence of collective dominance, and that KPN and VodafoneZiggo would tacitly coordinate their behaviour absent regulation.

Read more

26.03.2020 BE law
​I am suffering significant financial losses as a result of the spread of the corona virus. Is there a possibility of State aid?

Short Reads - COVID-19 brings certain questions to centre stage regarding State aid. In this short read, Peter Wytinck, Sophie Van Besien and Michèle de Clerck discuss the possibility of State aid in case of significant financial losses as a result of the spread of the corona virus.

Read more

02.04.2020 NL law
Claims assigned to a litigation vehicle: who needs to prove what?

Short Reads - Two recent decisions from the Amsterdam Court of Appeal have confirmed that litigation vehicles cannot come empty-handed to the court, and should provide documentation regarding the assignments of claims they submit. The Dutch legal system allows companies and individuals to assign their claims to a “litigation vehicle” or “claims vehicle” that bundles those claims into a single action. In its decisions of 10 March 2020, the Court of Appeal ruled that it is up to litigation vehicles to prove that the assignments can be invoked against the debtor. 

Read more

10.03.2020 NL law
De AVG staat niet in de weg aan de verwerking van persoonsgegevens door een toezichthouder tijdens een bedrijfsbezoek

Short Reads - Bedrijven die met toezicht worden geconfronteerd, zijn gehouden op verzoek van een toezichthouder in beginsel alle informatie te verstrekken. Met de komst van de Algemene verordening gegevensbescherming (AVG) is in de praktijk de vraag opgekomen of een toezichthouder bevoegd is om persoonsgegevens die onderdeel uitmaken van de gevraagde informatie te verwerken.

Read more

02.04.2020 NL law
EU competition policy agenda: full to the brim

Short Reads - The European Commission’s competition policy agenda stretches to 2024 and contains plans for many new or revised rules and guidelines. Recent publications, such as the New Industrial Strategy for Europe, shed more light on the Commission’s initiatives and their possible impact on parties from both inside and outside the European Union (EU). These new initiatives include temporary state aid rules to address the effects of the Corona crisis, consultations on the Block Exemption Regulations, and new measures in respect of (primarily) third-country companies.

Read more

05.03.2020 NL law
CBb confirms: no cartel fine, still interest to appeal cartel decision

Short Reads - Companies can challenge a decision establishing that they committed a competition law violation, even if no fine was imposed on them. The CBb – the highest court for public enforcement of cartel cases – recently confirmed that the absence of a fine does not affect a company’s interest to appeal. Consequently, parent companies held liable for a subsidiary’s cartel infringement can still challenge a cartel decision, irrespective of whether fines were imposed on them separately.

Read more

This website uses cookies. Some of these cookies are essential for the technical functioning of our website and you cannot disable these cookies if you want to read our website. We also use functional cookies to ensure the website functions properly and analytical cookies to personalise content and to analyse our traffic. You can either accept or refuse these functional and analytical cookies.

Privacy – en cookieverklaring