Following a long arm wrestling with the Belgian Competition Authority (BCA), the Belgian legislator adopted on 28 March 2024 a law, which finally excludes hospitals from merger control under the Belgian Code of Economic Law. This act comes after a period of turmoil between the BCA and the Belgian legislator on the application of merger control in the hospital sector.
Previously, hospitals were not considered undertakings under competition law. However, following the evolution of European jurisprudence, Belgian Competition law became theoretically applicable to mergers and acquisitions in the hospital and healthcare sector. In fact, such constraints were disregarded by the sector.
In February 2019, the Belgian legislator mandated hospitals to create and be part of a loco-regional hospital network, starting 1 January 2020. In the context of this reform, hospitals informally contacted the BCA to verify their obligation under merger control. Although the BCA, confirmed its jurisdiction over the loco-regional hospital network under certain conditions, the Belgian legislator passed a law on 29 March 2021, which exempted the establishment of loco-regional hospital networks and other changes in this network’s composition from prior merger control under Belgian competition law.
Nevertheless, BCA remained competent to assess under merger control concentrations of hospitals outside the scope of the law of 29 March 2021 as it was confirmed by several notifications concerning projects of concentration between Belgian hospitals. Due to the constraints such obligation imposed on this specific sector, the Belgian legislator decided to exempt hospitals concentrations from merger control law by a law of 28 March 2024. This exception will now apply to all concentrations of hospital in general. The Belgian legislator has kept a door open for concentrations when at least two of the hospitals individually have a turnover in Belgium of EUR 250 million and all hospitals in the concentration have collectively a turnover in Belgium of at least EUR 900 million.
In the course of the parliamentary process, several actors were consulted. Most of them gave a favourable position to the new law. The draft was also presented before the Belgian Council of State which considered that the exception of merger control by the BCA did not alter the preservation of the accessibility, quality, and affordability of services, nor did it affect the free choice of the user or provider to obtain or provide services. For the Council of State, the draft was not discriminatory.
On the other side, in its 2023 and 2024 priorities notes, the BCA listed the pharmaceutical and healthcare sectors as one of its sectors of priorities. After the adoption of the law of 28 March 2024, the BCA recalled that it will not hesitate to take appropriate action against any anti-competitive practices by healthcare establishments and healthcare professionals, particularly about unregulated fees and charges. Finally, the BCA announced it will be particularly vigilant in the future to ensure that all players in the healthcare sector comply with competition rules while considering their specific characteristics as rules applying to agreements between undertakings and abuses of dominance remain applicable.
Finally, the BCA has highlighted the importance of the pharmaceutical sector and the healthcare and has stated that it will not hesitate, in the exercise of its residual powers, to monitor the consolidation of the hospital sector, particularly in less populated regions. As the Belgian legislator intended, however, the BCA’s authority to review hospital concentrations has now been diminished to nearly fullest extent of its capacity. Its competence remains only for significant concentrations.
Annabelle Lepièce
Sébastien Willems
