On 10 May, Edith Schippers, the Health Secretary in the Dutch Rutte I Government, which tendered its resignation at the beginning of the month, submitted a Draft Act on Continuity, Mergers and Divestments in the Healthcare Sector to the Dutch Lower House. The Bill provides, inter alia, for a sector-specific healthcare merger control regime.
The Bill provides for an obligation for healthcare providers to involve all stakeholders, including patients and staff, in intended merger plans and to file a concentration effect report (CER) with the Dutch Healthcare Regulatory Authority (NZa) prior to closing a merger. This report must contain, inter alia, the aims of and the reasons for the merger, the structure of the merged entity, the expected financial consequences and the consequences for the patients, in terms of quality.
Review powers of the Nza
The NZa will have new powers to review whether stakeholders have been involved correctly and whether the merger will have a negative influence on the availability of ambulance care, emergency care, emergency obstetrics and emergency mental healthcare. Due to criticism from the Raad van State on an earlier version of the Bill, the NZa will not review the effects of the merger on the quality of healthcare as such.
Divestment power of the IGZ
The Bill also provides for new powers for the Healthcare Inspectorate General (IGZ) to order the splitting up of healthcare institutions which are the result of a prior merger. This power, which is meant to be an instrument of last resort, is designed to enable the IGZ to intervene where a merger has led to a decline in the quality of healthcare.
Review powers of the Nma
The Bill is without prejudice to the existing powers of the Dutch Competition Authority (NMa) to review healthcare mergers on their competition merits where these mergers trigger certain turnover thresholds. In that context, special low thresholds apply in the healthcare sector: where a merger involves at least two entities which each generated a healthcare turnover exceeding EUR 5.5 in the last calendar year preceding the intended transaction, the following thresholds apply, again in relation to the turnover generated in the last calendar year preceding the intended transaction:
- the entities concerned have generated, taken together, an aggregate worldwide turnover in excess of EUR 55 million; and
- at least two entities have each generated a Dutch turnover in excess of EUR 10 million.
The Lower Chamber has not, as yet, declared the Bill to be controversial following the resignation of the Rutte I Government.
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