Martijn van de Hel and Paul Breithaupt have successfully represented a supplier of HIS/EHRsystems in summary proceedings against the Authority Consumer & Market (“ACM”) before the Trade and Industry Appeals Tribunal ( “CBb”). In these proceedings before the CBb, the EHR supplier opposed the publication of a market survey by the ACM. The interim relief judge granted the EHR supplier's request; the ACM may only publish the management summary of the market study.
In 2021, KPMG, commissioned by the ACM, conducted a market study on the supply and demand side of the market for HIS/EHR systems and digital data exchange in the hospital sector. The EHR vendor, which was shown both a draft version and the final report, believes that the market study should not be published because it will cause significant reputational damage. The EHR supplier argues that (i) the ACM is not authorized to commission and publish such a market study, (ii) the market study contains a large amount of factual inaccuracies and value judgments about its system, and (iii) the ACM has not taken into account its interests and that publication of the market study is therefore disproportionately detrimental to the supplier.
The interim relief judge of the CBb granted the EHR supplier's request. According to the judge, the dispute is “factually complex and voluminous” and it is the first time that a judge has ruled on the legal assessment framework set out in Section 12w of the Establishment Act. The judge understands the EPD vendor's fear of reputational damage because the negative consequences of publication of the market survey are irreversible. In addition, the importance of publication by the ACM is not established, as the conclusions from the market study are not substantially different from the conclusions from the ACM's own investigation, the court said. Until the CBb's final ruling, the ACM may only publish the management summary of the market study.
The ruling of the interim relief judge of the CBb can be found here. For media reports on this case see here, here, here and here.
Follow Maverick Advocaten on Twitter and LinkedIn
