In early November 2019, the Dutch Authority for Consumers & Markets (ACM) published an evaluation of its guidelines on collective procurement of prescription medicines (2016). The guidelines provide an overview of the various options healthcare insurers and hospitals have for the collective procurement of medicine without infringing competition law, in order to create a stronger bargaining position in negotiations with medicine manufacturers. On behalf of the ACM, research firm SiRM conducted an evaluation of these guidelines and their impact on the prescription medicines negotiations.
The guidelines set out a “safe harbour” in which collective procurement is possible, which entails the following requirements:
• Only a limited part of the costs are harmonised.
• Taking part in the procurement is possible through pre-established, objective and non-discriminatory criteria.
• The collective does not unnecessarily limit its participants in terms of contract period and purchase obligations.
SiRM concluded that the guidelines did indeed have a positive impact on the bargaining positions of insurers and hospitals in negotiations, especially with regard to medicines for which no alternatives exist. However, the collaborations lead to increased complexity because, for example, stakeholders were initially uncertain about what to do with the money saved by the discounted fees. The evaluation furthermore explained that market participants acted rather carefully in order to avoid legal competition risks.
In response, the ACM is planning on clarifying the guidelines and explaining the competition rules more elaborately.
A prior version of this post was originally published by the same authors in Practical Law – Life Sciences, December 2019 Issue (Thomson Reuters).