On 5 March 2015, the Dutch Authority for Consumers and Markets ("ACM") published an informal opinion on a proposed collective purchasing arrangement. The arrangement concerns - inter alia - an exclusivity agreement between (almost all) Dutch insurance companies and a proton centre in the Netherlands. According to ACM, the arrangement constitutes a restriction of competition.
Proton therapy is an innovative method for the treatment of certain types of cancer. At the moment, there is no proton centre in the Netherlands and patients have to resort to treatment abroad. However, in 2013 ACM cleared the joint venture of several universities to build a proton centre and in the same year, four licenses for providing proton therapy were issued in the Netherlands.
According to the insurance companies, the licenced capacity of proton therapy exceeds demand to the detriment of the viability of the business case of such a centre. The insurance companies therefore propose an exclusive purchasing contract with one selected proton centre. This would prevent any delay in the establishment of the first proton centre in the Netherlands.
ACM noted that almost all Dutch insurance companies are involved in the arrangement. As a consequence, the ACM considered that the arrangement will enable the insurance sector to steer demand with a considerable effect on the supply-side of the market. ACM therefore concluded that the arrangement would amount to a violation of article 6 of the Dutch Competition Act ("Mw"), which is the national counterpart of article 101 TFEU.
Subsequently, ACM assessed the applicability of the exemptions under the third paragraph of article 6 Mw. In this context ACM emphasised that the burden of proof lies with the party invoking an exemption. This burden of proof requires that the alleged benefits are sufficiently (quantitatively) substantiated and that the probability that the benefits materialise is highly likely.
ACM concluded that there is insufficient reason to assume that without the arrangement in place, all of the licensees will refrain from the construction of proton centre, i.e. an exclusive purchase agreement with a single proton centre cannot be considered necessary. As such, ACM decided that the alleged probability that the risk of overcapacity will materialise is not sufficiently proven.
Source: www.acm.nl, ACM/DM/2015/201065_OV, 03-03-2015
Reproduced from Practical Law with the permission of the publishers (www.practicallaw.com).