The Italian Competition Authority to investigate two anti-competitive agreements affecting the health services market

The Italian Competition Authority (ICA) is still really active in enforcing the competition provision to suppliers of health services. Indeed, by a decision made on 7 October 2015 in the Case I792 the ICA has opened an investigation against two anti-competitive agreements affecting the market for the provision of health services on the basis of Article 101 TFEU and the corresponding Article 2 of the Competition Act n. 287/90. More specifically, the ICA targets two wide bid-rigging practices which, respectively, eight and nine market operators, were alleged to have carried out.
The first contested agreement concerned the competitive tender procedures organized since 2012 by the Milan's health authority for the award of the provision of out-of-hospital ventilotherapy services. The ICA observed that none or only a few operators participated in the first procedures. Following the decision of the contracting authority to lower the requirements for the award of the contracts on the basis of the negotiatons held with some market operators, more firms submitted a bid in response to the later tenders. Oddily, all the bidders offered the same prices, which were also identical to those previously indicated to the contracting authority during the previous discussions. The Milan's health authority entered into a framework agreement governing the provision of the ventilotherapy services with those bidders.
By the second agreement the parties coordinated their conducts with regard to the competitive tender procedures organized by the health authority of the region of Campania to select to which entrust the task to supply out-of-hospital oxygen therapy services. In this case, the ICA observed that the parties behaved in such a way that none of them submit a bid for a contract for which another party made a bid. The ICA then took the view that the parties may have greed to coordinate their conducts to the detriment of competition in the markets corresponding to above tender procedures organized by the health authorities of Milan and the region of Campania.

In conclusion, the Case I792 is the latest in quite a long string of proceedings focusing on bid rigging practices in the health sector started by the ICA over the past years. Such practices not only restrain competition in the relevant markets, but also weaken the financial situation of health authorities by forcing them into paying more to buy the services and goods they need to discharge their statutory duties. Arguably, with such aggressive enforcement stance the ICA tries to preserve the effectiveness of the spending review measures recently adopted by the Italian legislator to cut the public expenses in the health sector.

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