Martijn van de Hel and Paul Breithaupt have successfully represented an HIS/EHR supplier in appeal proceedings against the Netherlands Authority for Consumers and Markets (“ACM”) before the Trade and Industry Appeals Tribunal (“CBb”). In these proceedings before the CBb, the EHR supplier challenged the publication of a market study by the ACM. The CBb ruled that the ACM may only publish the market study after adjustments have been made. Previously, the ACM was only allowed to publish the executive summary of the market study after a ruling by the CBb’s preliminary relief judge.
In 2020 and 2021 KPMG, commissioned by the ACM, conducted a market study on the supply and demand side of the HIS/HER-systems market and data exchange in the hospital sector. The EHR supplier argues that the market study should not be published because it will cause considerable reputational damage. The EHR supplier is frequently mentioned by name and in a negative manner in the market study. According to the EHR supplier, it is not a market study but a customer satisfaction study instead.
The preliminary relief judge of the CBb, who ruled that the ACM may only publish an executive summary of the market study, indicated that he understands the EHR supplier’s fear of reputational damage. In addition, according to the preliminary relief judge there was doubt on the ACM’s interest in publication.
In the appeal proceedings, the CBb ruled that the ACM may only publish the market study if four adjustments are made. Although the CBb considers that the ACM has a legitimate interest in publishing the market study, the balancing of interests by the ACM on four points does not meet the standard set in Article 3:4 (2) of the General Administrative Law Act. The ruling provides explanatory notes for each of these points that the ACM must include in the market study. The rectified market study has since been published on the ACM's website.
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