Martijn van de Hel en Paul Breithaupt successfully represented an HIS/EHR supplier in a preliminary relief proceeding against the Netherlands Authority for Consumers & Markets (“ACM”) before the Trade and Industry Appeals Tribunal (“CBb”). In these preliminary relief proceedings, the EHR supplier challenged the publication of a market study by the ACM. The preliminary relief judge has granted the request of the EHR supplier, the ACM may only publish the executive summary of the market study.
In 2021, KPMG, commissioned by the ACM, conducted a market study on the supply and demand side of the HIS/EHR systems market and data exchange in the hospital sector. The EHR supplier, which was provided with both a draft version and the final report, argues that the market study should not be published because it will cause considerable reputational damage. The EHR supplier claims that (i) the ACM does not have the authority to commission and publish this type of market study, (ii) the market study contains many factual inaccuracies and judgements about its system, and (iii) the ACM has not taken into account its interests and therefore publication of the market study will be disproportionately disadvantageous to the supplier.
The preliminary relief judge of the CBb has granted the request of the EHR supplier. According to the judge, the dispute is “factually complex and substantial” and it is the first time that a judge has ruled on the legal framework of Article 12g ACM Establishment Act (Instellingswet). The judge understands the EHR supplier’s fear of reputational damage since the negative consequences of publishing the market study are irreversible. In additional, the ACM’s interest in publishing the market study is not apparent, as the conclusions form the market study are not essentially different from the conclusion from the ACM’s own study, according to the court. Until the final judgment of the CBb, the ACm may only publish the executive summary of the market study.