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ACM: Trade associations cannot influence individual contract negotiations in the health-care sector

Trade associations in the health-care sector have plenty of opportunities for assisting their members (health-care providers and health insurers) in individual negotiations on health-care contracts. However, there are boundaries to what trade associations can do. For example, they cannot give their members anticompetitive advice during such negotiations. The Netherlands Authority for Consumers and Markets (ACM) has explained the opportunities and boundaries in the draft version of its ‘Guidelines regarding trade associations and health-care contracting’ (in Dutch: Leidraad Brancheorganisaties en zorgcontractering). Over the next several weeks, market participants as well as others have the opportunity to submit their opinions on these draft guidelines.

Martijn Snoep, Chairman of the Board of ACM, explains: “Health-care providers and health insurers must negotiate individually and freely within the boundaries set by the legislature. That will ensure that health-care providers are able to provide the type of care that best meets the specific needs in each individual region. In addition, it is important that negotiations are completed in a timely manner. That is the only way in which insured are able to take a well-informed decision on their health insurance at the end of each calendar year. Trade associations can give their members advice, but they cannot exert any influence. In these guidelines, ACM presents concrete examples of what is and what is not allowed.”

What is this case about?

Health insurers buy health-care services from different health-care providers, for example hospitals, clinics, GPs, speech therapists, and psychologists. Last year, ACM launched investigations into attempts by trade associations to influence individual negotiations between health-care providers and health insurers. It turned out that several trade associations gave their members advice on, for example, prices, volumes, and cost reimbursements. Such actions disrupt the individual negotiation process.

However, ACM also saw last year that there was uncertainty about the opportunities within competition law that trade associations have for helping their members in individual negotiations. In that context, various factors played a role: the aftereffects of the COVID-19 pandemic, the Integral Healthcare Agreement (IZA), the uncertainty about higher energy costs, and possible amendments to collective labor agreements regarding higher wages. ACM held discussions with several trade associations about what is and what is not allowed, and subsequently closed its investigations.

What are trade associations allowed to do and what not?

ACM wishes to prevent any uncertainty from emerging in the next contract period over what is and what is not allowed under the competition rules. Trade associations can assist their members in negotiations as long as they do not disrupt the negotiation process. For example, they can inform their members about relevant rules and regulations, or they can draw attention to the new guidelines regarding contracting and transparency (in Dutch: Handvatten Contractering en Transparantie) of the Dutch Healthcare Authority (NZa). However, they cannot give advice about any commercial aspects of contracts, such as prices or volumes, or share any competition-sensitive information with their members.

Consultation of ACM’s guidelines regarding trade associations and health-care contracting

ACM invites relevant market participants as well as others to submit their opinions (in writing) on the draft guidelines. They have until Friday, August 25, 2023 to do so. In addition, ACM will organize an informational meeting for trade associations on August 29, 2023.

See also