The Netherlands was one of the first countries to opt for the introduction of market forces in the healthcare sector. The consequences hereof are still noticeable up and until today. Healthcare related costs continue to increase as result of an ageing population. In order to manage these costs, general administrative contracts are being concluded by the government, healthcare providers and healthcare insurers. Yet the question is whether these agreements are enforceable and whether the parties are acting according to their letter or their spirit? Meanwhile, the interests in relation to healthcare procurement are increasing. How should healthcare providers react to the buying power of healthcare insurers, healthcare administration offices and municipalities? Are healthcare providers also allowed to collaborate during that process, and of what use can sector- or profession associations be for their members? Competition law plays a crucial role in these types of questions.
Healthcare providers, both regarding cure and care, focus increasingly on what they do best. This sometimes means that intensive cooperation is sought with other providers in certain areas. In other cases, a merger is the appropriate way for healthcare providers to continue to meet the expectations of patients and healthcare insurers. The Dutch Authority for Consumers and Markets (ACM) may intervene during these processes, and in most instances a merger will need to be notified to the Dutch Healthcare Authority (NZa) and/or ACM. Very few sectors have so many detailed rules with respect to tariff regulation. The regulatory framework is in constant flux, while supervision is developing as well.
The pharmaceutical industry is experiencing what is known as a patent cliff: the large-scale expiry of patents on blockbuster drugs is the cause of considerable market dynamics. In Europe, the United States, as well as China, authorities are showing great interest in enforcing competition law in the pharmaceutical sector.
The life cycle management strategies of originators are also being looked at critically. These are strategies that according to the authorities could counteract a decrease in healthcare costs. Unilateral conduct by originators, including evergreening, product hopping or switching, has been put under the microscope. However, supervision is also affecting generics. The authorities may classify settlement agreements between originators and generics as illegal pay-for-delay or reverse payment agreements. ACM gives due consideration to ‘the high purchasing costs of pharmaceutical products and medical devices’. In the Netherlands, there are currently many developments in this area, such as the joint purchasing of expensive medicines by hospitals and the rise of E-Health and new distribution channels, as a result of which new market conditions emerge. Selective purchasing practices by healthcare insurers raise the question as to whether this is compatible with the duty to provide care. Knowledge of the regulation framework and competition law can make the difference in being able to respond well to these developments.