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Health sector

The health sector is one of the most important economic sectors in Germany. It accounts for approximately 11 % of total economic output and employs more than every seventh member of the labour force.

In 2013 expenditure on health care in Germany amounted to around 315 billion euros. In the same year companies active in the area of medical technology, including the production of diagnostic equipment, products for surgical operations, implants or surgical dressings, achieved a total turnover of around 23 billion euros.

The statutory health insurance funds and private health insurance companies insure their members against the risk of ill health and make sure that patients receive the necessary medical treatment. These services are provided by various entities, so-called healthcare providers, including e.g. hospitals, doctors and therapists. Pharmaceutical companies and manufacturers of medical products are also active players in the health sector.

Competition in the health sector

Dynamic competition processes make sure that players in the sector develop effective supply structures and have the incentive to offer their products and services in the most efficient and cost-effective way possible. This ensures that patients have a wide range of choice and receive a high quality of service.

The main pillar of the sector is the statutory health insurance system, in which around 90% of the German population are insured. In the area of standard care, the social law defines a range of statutory duties for the health insurance funds and their associations and does not allow them any individual scope of action. Nonetheless the legislator has opened up several areas to competition. For example, with the implementation of the Act to Strengthen Competition in the Statutory Health Insurance System, the financing of the health insurance funds was reorganised in 2009 in order to provide incentives for the funds to compete with one another for members. According to this law, health insurance funds which generate surpluses can pay out a certain percentage of the contributions paid into the funds in the form of bonuses while those funds which cannot cover their financial requirements from allocations from the national health fund have to collect additional contributions from their members. To prevent the different structures of the health insurance funds in terms of the populations insured and correlated health risks from distorting competition, a morbidity-based risk structure compensation scheme ensures that the allocations which the health insurance funds receive from the national health fund create largely equal starting conditions for competition. With an act to further develop the financial structure and quality of statutory health insurance, the option was introduced on 1 January 2015 for the health insurance funds to independently levy income-related additional contributions instead of the previous lump sum payments.

What does the Bundeskartellamt control?

In merger control proceedings the authority ensures that a merger does not significantly impede effective competition and that relevant alternatives remain for the patients. With the entry into force of the 8th Amendment to the German Competition Act (Gesetz gegen Wettbewerbsbeschränkungen, GWB) in 2013 the Bundeskartellamt also became responsible for examining voluntary amalgamations of health insurance funds. As mergers have to be examined before they can be approved under regulatory control, the Bundeskartellamt immediately informs the respective competent regulatory authority about the conclusion of its own proceedings in order to simplify procedures. Mergers between service providers and manufacturers of medical products or providers of medical care services are unreservedly subject to merger control.

From a competition perspective the health markets are frequently regional markets, e.g. in the area of acute in-patient hospital treatment, or even local markets, as in the area of general out-patient medical care. By contrast the markets for the manufacture of pharmaceuticals and medical aids such as e.g. hearing aids, glasses or wheelchairs, are normally national supply markets. The Bundeskartellamt examines in particular whether patients in the regions affected will still have an adequate number of alternatives and what effects the transaction will have on competition. In the case of amalgamations between health insurance funds, it also examines whether the transaction will significantly impede effective competition on the demand side for the services of health care providers.

In the area of antitrust and abuse control the Bundeskartellamt pays particular attention that the scope of action provided by the legislator to increase the quality and economic efficiency of health care is not narrowed again by the health insurance funds, private insurance companies or service providers to the detriment of the patients. The legislator also offers the health insurance funds a much greater scope of action in competing for members. Nonetheless this scope of action is still not pro-tected under competition law against restrictions by the health insurance funds. The practices of manufacturers of medical products, on the other hand, are unreservedly subject to antitrust and abuse control.

Publications (some of which are available in German only)

Control of hospital mergers:
Rhön-Klinikum AG can acquire Kreisklinik Bad Neustadt a. d. Saale
(Press release of 15.09.2015)

Bundeskartellamt clears merger between Friedrichshafen und Tettnang clinics
(press release of 14.11.2014)
Link to case summary (German version)

Bundeskartellamt prohibits merger between hospitals in Esslingen
(Press release of 15.05.2014)
Link to decision (German version)

Bundeskartellamt clears acquisition by Helios Kliniken (Fresenius) of 40 clinics and 13 medical care centres operated by Rhön-Klinikum AG
(Press release of 20.02.2014)

Merger control in the market for medical products:
Blood products: Bundeskartellamt clears acquisition of Fenwal by Fresenius
(Press release of 12.12.2012)

Pre-filled syringes: Becton Dickinson and Company / Safety Syringes Inc.
(Case summary of 21.12.2012: Bundeskartellamt clears acquisition of Safety Sy-ringes Inc. by Becton Dickinson and Company)
Link to the decision (German version)

Antitrust and abuse control:
Pharmacists lift their prohibition of the control of health insurance funds in the sale of blood glucose strips
(Press release of 1.10.2014)
Link to case summary (German version)
Link to decision (German version)

Bundeskartellamt opens up competition among ophthalmologists from different fed-eral states in Germany
(Press release of 2.7.2013)
Link to case summary (German version)
Link to decision (German version)

Restriction of competition caused by rebate agreements between the Federal Guild of Hearing Aid Acousticians (BHA) and health insurance funds
(Press release of 24.11.2011: "Bundeskartellamt eliminates competition restraints in the distribution of hearing aids.")
Link to decision (German version)