Maverick Advocaten responds in Global Competition Review to ACM's conditional approval for merger Omring en Vrijwaard

Diederik Schrijvershof responded upon request in Global Competition Review to questions about the approval of the Authority for Consumers and Markets ("ACM") for the merger between Omring and Vrijwaard. On 16 September 2019 ACM determined that a licence was required for the merger. This license was applied for by the parties on 7 November 2019. Following an oral hearing held in The Hague on 16 June 2020 at the request of the parties, ACM decided on 5 August 2020 to grant a licence subject to a number of conditions. The case attracted the attention of GCR now that a lengthy (second phase) process totalling 16 months preceded the granting of the licence. GCR writes in that context:

Maverick partner Diederik Schrijvershof, who is counsel to Omring and Vrijwaard, said the review lasted as long as it did for several reasons. The companies and other stakeholders had “different opinions on some fundamental issues” to the enforcer, such as the scope of the geographic market and Vrijwaard’s financial state, he said. The ACM rejected a failing firm defence during its Phase I review, he added.

Schrijvershof said the enforcer also came up with a “brand new theory of harm” during its in-depth probe, related to “a restriction of the ‘quality of life of elderly people’ as a result of the merger”. The ACM dismissed the companies’ argument that this is not a relevant parameter for competition, he said. This new theory of harm will likely feed into the ACM’s general inquiry on how competition in elderly care markets works, which the enforcer began earlier this year, Schrijvershof said.”

ACM has previously announced empirical research into the functioning of nursing home care. ACM reports on this research: "Through empirical research based on existing data, ACM wants to gain better insight into the relationship between choice and quality, accessibility and affordability of nursing home care. Discussions with stakeholders are part of the empirical research. The reasons for the research are the increase in the number of concentration reports and the developments in the sector, including developments in the labour market." This investigation has not yet been completed and ACM has (unlike in this case) not yet published anything about the progress. Regardless, it will be interesting to see what the empirical research will bring to the legal position of merging parties and ACM in future mergers and collaborations in elderly care.

The entire CGR article can be consulted here.

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Contact details

Diederik Schrijvershof

T +31 20 238 20 03
M +31 6 81 364 318

Martijn van de Hel

T +31 20 238 20 02
M +31 6 21 210 853

Wouter Jans

T +31 20 238 20 06
M +31 6 46 666 347

Annabel Kingma

T +31 20 238 20 07
M +31 6 15 366 257