Abstract
This chapter is concerned with the role played by various types of competition rules in the context of the recent and ongoing drive towards health care liberalisation in the Netherlands. It focuses more specifically upon the relationship between the general competition rules applied by the Netherlands’ Competition Authority (NMa) and the sector-specific competition policy that is applied by the Dutch Healthcare Authority (NZa).
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Notes
- 1.
Cf., Dutch Ministry of Health, The new care system in The Netherlands: durability, solidarity, choice, quality, efficiency, May 2006 http://www.minvws.nl/en/folders/z/2006/the-new-health-insurance-system-in-three-languages.asp; Dutch Health Authority, Contribution to EU consultation on cross-border health services, October 2006 http://ec.europa.eu/health/ph_overview/co_operation/healthcare/docs/health_services_co201_nl_OnlinePDF.pdf.
- 2.
Sauter (2009b), p. 419.
- 3.
Ideally all parties would have incentives to contract mutually based on the pressures of (potential) competition. However it appears that to reach this stage selective contracting must first be possible. Cf., Capps et al. (2003), p. 737.
- 4.
For additional arguments for regulation see Maskin and Tirole (2004), p. 1034.
- 5.
The locus classicus is Arrow (1963), p. 941.
- 6.
Since 1 January 2009 the Cooperation and Competition Panel (CCP) in the UK performs similar functions especially as a sector-specific competition authority for the NHS. Cf., http://www.ccpanel.org.uk/.
- 7.
The effects-based approach is especially important regarding Article 102 TFEU. Cf., Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings, COM (2009) 864 final. However some per se restrictions remain important, especially in the context of Article 101 TFEU. Cf., Case C-8/08 T-Mobile et al., judgment of the Court of 4 June 2009, ECR I-0000 (n.y.r.).
- 8.
Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJ 2003 L 1/1, Article 5 (‘The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases.’).
- 9.
For a critical view see Canoy and Sauter (2010).
- 10.
Based on the work of Kemp and Severijnen (2009). The authors focused on hip replacement surgery and demonstrated that one set of merged hospitals (in ‘het Gooi’) significantly increased their prices, whereas another set of merged hospitals (in Rotterdam) did not. Criticism of merger practice based on these data was reported in the daily newspaper Volkskrant of 31 December 2009 (‘healthcare mergers lead to price increases’), and rebutted by the Netherlands’ Competition Authority in a Press Release of 11 January 2010.
- 11.
I am grateful to Rein Halbersma for his comments on the issue of market definition (see also further below). The usual disclaimer applies. Cf., Varkevisser et al. (2008), p. 7. On the US experience see Improving Healthcare: A Dose of Competition. Report by the Federal Trade Commission and the Department of Justice, July 2004. http://www.usdoj.gov/atr/public/health_care/204694.htm.
- 12.
An additional method under consideration is the time elasticity approach based on the willingness to travel. Cf., more generally Varkevisser (2009).
- 13.
For example, http://www.nza.nl/104107/138494/Cooperatie_Vlietland_-_Vlietland_Ziekenhuis_OnlinePDF.pdf on a vertical merger involving a hospital in the Rotterdam area and http://www.nza.nl/binaries/21047/42909/87232/Openbare_NZa-zienswijze_voo1_OnlinePDF.pdf with regard to the Zeeuwse Ziekenhuizen case discussed below.
- 14.
Decision of 25 March 2009, Case 6424 Ziekenhuis Walcheren—Oosterscheldeziekenhuizen.
- 15.
Dutch Council of State, 17 April 2009, Annex to Parliamentary Documentation II 2008/9, 27 247, No 90.
- 16.
For an exception preceding the creation of the NZa cf., the Decision of 3 September 2002, Case 2554 Molenpad Health Services v. ZAO Zorgverzekeringen. Here the Netherlands’ Competition Authority rejected a complaint of dominance abuse by a physical therapist against the standardised contracting practices of a health insurer.
- 17.
Decision of 19 September 2008, Case 5851 Thuiszorg’t Gooi.
- 18.
Commission Regulation (EC) No 2658/2000 of 29 November 2000 on the application of Article 81(3) of the Treaty to categories of specialisation agreements, OJ 2000, L 304/3.
- 19.
Decision of 16 November 2004, Case 2501 Dienstapotheek Assen.
- 20.
Decision of 20 April 2005, Case 3309 Brancheverenigingen van psychologen en psychotherapeuten.
- 21.
Decision of 17 July 2006, LJN: AY4928. The subsequent appeal by the Netherlands’ Competition Authority to the Administrative High Court for Trade and Industry was turned down as unfounded. Decision of 8 October 2008, LJN: BF8820.
- 22.
This branch of its activities and indeed the legal basis for the obligations involved is thought to be covered by the exception in Article 54 of the Third Non-life Insurance Directive 92/49/EEC, OJ 1992, L 228/1. This reading was confirmed by a letter to the Dutch Health Minister from the then Commissioner for the Internal Market, Frits Bolkestein, dated 8 October 2003.
- 23.
This is an unexplained (if minor) deviation from the 50% market share familiar from general competition law. Cf., ECJ, Case C-62/86 AKZO Chemie BV v. Commission [1991] ECR I-3359.
- 24.
CBB, AWB 05/903 and 05/921 to 05/931, Judgment of 29 August 2006 (‘Mobile terminating rates’).
- 25.
Although this merger was indeed cleared by the Netherlands’ Competition Authority, it was nevertheless subsequently blocked by the Housing Minister who has special powers regarding mergers involving housing cooperatives.
- 26.
Decision of 18 June 2007, AMM VieCurie Ziekenhuis.
- 27.
Decision of 18 November 2009, Menzis-Apotheek J.D. van Dalen.
- 28.
Regulation 1/2003, supra n. 8, Article 3 sub 3.
- 29.
Decision of 3 May 2005 relating to State aid N 541/2004 and N 542/2004—The Netherlands—Risk equalisation scheme and retention of reserves.
- 30.
Cf., Ministry of Health, Welfare and Sport, Risk Insurance under the Health Insurance Act in The Netherlands, Summary of 7 July 2008 (original report August 2007).
- 31.
ECJ, Case C-280/00 Altmark Trans GmbH and Regierungspräsidium Magdeburg v. Nahverkehrsgesellschaft Altmark GmbH, and Oberbundesanwalt beim Bundesverwaltungericht (Altmark) [2003] ECR I-7747.
- 32.
ECJ, Case C-393/92 Municipality of Almelo et al. v. NV Energiebedrijf IJsselmij [1994] ECR I-1477. Cf., CFI, Case T-289/03 British United Provident Association Ltd (BUPA), BUPA Insurance Ltd, BUPA Ireland Ltd v. Commission of the European Communities [2008] ECR II-81. Annotated by Sauter (2009a), p. 269.
References
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Acknowledgments
I am grateful to Misja Mikkers and Ilaria Mosca for helpful comments. All views presented here are personal.
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Sauter, W. (2011). Experiences from The Netherlands; The Application of Competition Rules in Health Care. In: van de Gronden, J., Szyszczak, E., Neergaard, U., Krajewski, M. (eds) Health Care and EU Law. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-728-9_14
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