Dutch Regulator Wants Better Functioning Markets For IT-healthcare – Antitrust, EU Competition

The Authority for Consumers & Markets
(“ACM“) has made several suggestions
with its new draft Guidance regarding
“Well-functioning markets for healthcare IT”
(“Draft Guidance
IT-Healthcare“).¹ Amongst them are no
impediments for data exchange, no abuse of vendor lock-in, room for
collaboration between healthcare providers in procurement and the
use of standards.

The market for IT-Healthcare has featured on the ACM’s
agenda for a long time. The ACM started a market survey in 2021,
held several meetings with companies who are active in the market
for IT-healthcare and also received several signals. All of this
indicated that healthcare providers are often too dependent on
their IT supplier as many IT-systems can only interact with other
IT systems of the same IT supplier. This results in a situation
where healthcare providers cannot exchange data with each other
when they don’t use the same IT systems. There are also
difficulties in exchanging data from one IT system to a new IT
system (of a different supplier). This dependence generates a high
risk of a vendor lock-in, meaning that a healthcare provider
becomes too dependent on his IT supplier as switching to a
different IT supplier would incur significant costs. This
dependence could be abused by IT companies that have a dominant
position in the market which is prohibited under competition
law.

With the Draft Guidance IT-Healthcare, the ACM hopes to provide
clarity on competition rules and offer certainty to both IT
suppliers and healthcare providers in order to create a
well-functioning market for IT-healthcare. Although the Draft
Guidance focuses on IT-systems for hospitals, it can have
implications for all IT systems for primary healthcare. Interested
parties can give their view on the Draft Guidance IT-Healthcare
until 26 August 2022.

In addition to rules of conduct for healthcare IT vendors, the
Draft Guidance also explains which forms of cooperation between
healthcare providers are allowed to increase their countervailing
power, e.g., by collaborative procurement. The ACM also indicates
that any agreements between market participants regarding technical
solutions, uniform language, and standards that promote the
interoperability of healthcare IT systems and the digital exchange
of data, are generally allowed.

The ACM mentions that its attention to IT in healthcare is part
of ACM’s focus area, ‘The Digital Economy’. The
problems that the ACM addresses in the market for IT-healthcare
might be addressed by the proposed Regulation on
harmonised rules on fair access to and the use of data
(“Data Act“). The purpose of the Data
Act is to create a fair digital environment, make data more
accessible for all and enable data-driven innovations. It is
therefore expected that the Data Act will make the exchange of data
from one IT system to a new IT system possible.

Footnote

1. Although the Draft Guidance is published in Dutch
only, ACM published an English
statement

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