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

30.04.2019 EU law
Climate goals and energy targets: legal perspectives

Seminar - On Tuesday April 30th, Stibbe organizes a seminar on climate goals and energy targets. Climate change has incited different international and supranational institutions to issue climate goals and renewable energy targets. Both the UN and the EU have led this movement with various legal instruments.

Read more

04.04.2019 NL law
Fine liability in antitrust cases is closely scrutinised by Dutch courts

Short Reads - A parent company can be held liable for a subsidiary's anti-competitive conduct if the parent has exercised decisive influence over the subsidiary, because the two are then considered a single undertaking. This is why the Trade and Industry Appeals Tribunal (CBb) recently found that the ACM cannot simply rely on managing partners' civil liability to determine fine liability for a limited partnership's anti-competitive conduct.

Read more

12.04.2019 NL law
Hoogste Europese rechter bevestigt dat overheden onrechtmatige staatssteun proactief moeten terugvorderen

Short Reads - De maand maart 2019 zal vermoedelijk de juridisch handboeken ingaan als een historische maand voor het mededingings- en staatssteunrecht. Niet alleen deed het Hof van Justitie een baanbrekende uitspraak op het gebied van het verhaal van kartelschade. Het heeft in de uitspraak Eesti Pagar (C-349/17) van 5 maart 2019 belangrijke vragen opgehelderd over de handhaving van het staatssteunrecht op nationaal niveau.

Read more

04.04.2019 NL law
Tick-tock: no reset of the appeal clock for amending Commission decision

Short Reads - The European Court of Justice recently upheld the General Court's order finding that metal production and recycling company Eco-Bat had submitted its appeal outside of the appeal term. Eco-Bat had relied on the term starting from the date of the European Commission's decision correcting figures for the fine calculation in the initial infringement decision.

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