Belgian Competition Authority confirms jurisdiction over hospital mergers

Until recently, the hospital sector has escaped the attention of the Belgian Competition Authority (BCA).

When the Belgian legislator, through the law of 28 February 2019 required hospitals to create local-regional hospital networks, the BCA had to remind this sector in a communication of July 2020 of the obligation to notify merger projects prior to their implementation, insofar as hospitals constitute undertakings under competition law. Finally, in view of the scope of the reform, the legislator in 2021 exempted from the obligation to notify the BCA the creation of a local-regional hospital network or any subsequent change in its composition.

The BCA, however, remains competent to examine mergers and acquisitions between hospitals, unless it concerns the creation or modification of a local-regional hospital network.

For example, the BCA recently examined the proposed merger of Hôpital Ambroise Paré and Pôle Hospitalier Jolimont since the notification thresholds based on the sales of the entities concerned had been exceeded. This is the BCA's second decision on hospital mergers, following the 2021 approval of a hospital grouping created by Cliniques Universitaires de Bruxelles-Hôpital Erasme, Institut Jules Bordet and Hôpital Universitaires des Enfants Reine Fabiola. It was, however, the first full decision involving a detailed market analysis. It should be noted that on 28 June 2023, the BCA partially lifted the obligation to suspend this concentration in order to allow the transaction to go ahead.

On 21 December 2023, the BCA approved the proposed merger between Hôpital Ambroise Paré, a public university hospital, and Pôle Hospitalier Jolimont ASBL, a private general hospital managing six hospital sites spread across the Hainaut and Walloon Brabant provinces. The proposed merger involved the amalgamation of their general hospital activities, excluding the psychiatric activities of Hôpital Ambroise Paré.

In its due diligence, the BCA examined whether the merger was likely to create benefits for patients that outweighed any risks associated with a reduction in the number of independent establishments in the relevant care areas.

On this occasion, the BCA distinguished between the inpatient market (excluding psychiatric hospitalisation) and the specialised outpatient market.

The BCA's examination showed that other general hospitals were active in the regions concerned, both in the inpatient and specialist outpatient markets, and that the risk of a deterioration in the range of care on offer in terms of capacity, diversity and accessibility could be ruled out. In addition, the BCA ruled out any serious risk of pricing effects, including regarding fee and room supplements.

Finally, at the end of a preliminary analysis in phase 1 of the Auditorat, the Collège de la Concurrence approved the analysis framework specific to hospital mergers and concluded that there were no serious doubts of a significant impediment to effective competition on the analysed markets.

As a result, this notified merger was authorised on 23 December 2023 without conditions.