Belgium - Belgian Competition Authority Offers Guidance on Mergers of Local Hospital Networks
On 22 July 2020, the Belgian Competition Authority (BCA) published a note (the Note) which discusses the application of the Belgian merger control rules to the creation of local hospital networks (locoregionale ziekenhuisnetwerken; réseaux hospitaliers locorégionaux – see the attached Note and press release in different language versions).
The Note was prompted by various requests from the sector where hospitals may now be required by the Law of 28 February 2019 “modifying the consolidated law of 10 July 2018 regarding hospitals and other institutions of care, as regards the clinical networking between hospitals” (the Law) to establish a local network of hospitals. It explains that the creation of such a network may give rise to a concentration that is notifiable under the Belgian merger control rules (the Note does not mention the possible application of the European merger control rules). This will depend on whether there is a change of control on a lasting basis over at least some of the hospitals involved in the transaction and whether the financial turnover-related thresholds are reached. This double assessment will be made on a case-by-case basis.
The Note offers extensive guidance on the concept of change of control against the specific background of the Law and will be welcomed by stakeholders. This is because, as the Note points out, the Law and the merger control rules pursue different goals and are not always easy to reconcile. More broadly, unlike the situation in neighbouring countries such as The Netherlands, the sector is still coming to grips with the application of the competition rules. Merger control is only one aspect of a wider category of rules which also includes such bodies of law as the public procurement procedures and the anti-cartel rules. As recently as October of last year, the BCA started an investigation into alleged competition infringements that aimed to prevent biosimilar medicines from entering the market (see, Van Bael & Bellis News Alert of 8 October 2019). The procedure reportedly targeted not only pharmaceutical firms, but also specific hospitals.