Yesterday, the Federal Court of Justice (BGH) dismissed an appeal on points of law lodged by the Rhön-Klinikum AG and the administrative district of Rhön-Grabfeld against a decision of the Düsseldorf Higher Regional Court. The Düsseldorf Higher Regional Court had confirmed a decision of the Bundeskartellamt on 11 April 2007 in which the authority had prohibited Rhön-Klinikum AG from acquiring two district hospitals (Bad Neustadt District Hospital and Mellrichstadt District Hospital) from the administrative district of Rhön-Grabfeld. In its decision of 10 March 2005 the Bundeskartellamt established that Rhön-Klinikum AG already held a dominant position in the geographic markets affected. The acquisition of the two district hospitals would have further strengthened this dominant position. With the decision of the BGH the Bundeskartellamt’s opinion has been confirmed in the last instance.

The BGH has not yet published the reasons for its decision. Nevertheless, it can be stated as a fact that with its decision the BGH has affirmed the administrative practice of the Bundeskartellamt according to which merger control as laid down in the Act Against Restraints of Competition is fully applicable to the hospital sector. The Düsseldorf Higher Regional Court had already confirmed that the application of the merger control provisions of the ARC was not precluded by social law or hospital law provisions. In addition, competition law objectives and health policy objectives were not in conflict with one another.

The President of the Bundeskartellamt, Dr Heitzer, stated: “Quality competition between the hospitals of a district ensures that the population is provided with good health care services. The ARC and its merger control provisions serve to protect this quality competition. I am pleased that the Bundeskartellamt’s practice, which has always taken account of the specific conditions in the hospital sector, has now been confirmed in the last instance.“