CMA clears £1.2bn deal between healthcare tech providers

 

 

The Competition and Markets Authority has approved the acquisition of EMIS Group Plc by UnitedHealth Group Incorporated (UH).

EMIS supplies data management systems to the NHS, including the electronic patient record system used by the majority of NHS GPs. Optum, part of UH, currently supplies software used by GPs when prescribing medicines

The CMA found during its Phase 1 investigation that there was a realistic prospect of a substantial lessening of competition (SLC) as a result of partial foreclosure in the supply of medicines optimisation (MO) software and population health management (PHM) services in the UK.

In its Phase 2 investigation the CMA found that although EMIS holds a strong market position in the supply of electronic patient record systems the merger may not be expected to result in a SLC.

The CMA did not consider that the merged entity would have the incentive to engage in partial foreclosure in the supply of MO software by restricting access to EMIS's electronic patient record system..

The merged entity would not have the ability to partially foreclose Optum's PHM services rivals by restricting access to the primary care data held by EMIS.

 

https://www.gov.uk/government/news/cma-clears-nhs-healthcare-tech-deal

European Commission launches online database on content moderation decisions

 

 

The European Commission has launched its Digital Services Act (DSA) Transparency Database.

 

Article 17 of the DSA requires hosting services providers to provide a service recipient a "statement of reasons" explaining their decision to remove or disable access to specific items of information provided by the recipient.  The statement of reasons must be clear and easily comprehensible and as precise and specific as reasonably possible, so as to reasonably allow the service recipient to effectively exercise their redress options.

 

Article 24(5) of the DSA obliges the European Commission to establish a publicly accessible and searchable database, which will store providers' statements of reasons for the removal of information and other content moderation decisions. Providers must submit their decision and statement of reasons to the Commission's database in a standard format, without undue delay after taking a decision.

 

Only Very Large Online Platforms, as designated under the DSA, are required to submit data to the database. Other providers of online platforms, with the exception of micro and small enterprises, will have to submit data on their content moderation decisions from 17 February 2024.

The aim of the database is to achieve real-time updates. The Commission launched a consultation on the format of the database in June 2023.

https://digital-strategy.ec.europa.eu/en/news/digital-services-act-commission-launches-transparency-database

Department for Business and Trade statement on PACCAR

 

Department for Business and Trade statement on PACCAR

The Department for Business and Trade issued statement in response to the Supreme Court's decision in R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28.

By a 4 to 1 majority, the Supreme Court held that litigation funding agreements (LFAs), where the funder plays no part in the conduct of the litigation but their remuneration is based on a percentage of any damages recovered, are damages-based agreements (DBAs).  As such they will be unenforceable unless they comply with the relevant regulatory regime for DBAs.

This situation has led many observers to speculate whether legislative change may be forthcoming as only this would seem to reverse the position.

The Department of Business and Trade has stated briefly that it "is aware of the Supreme Court decision in Paccar and is looking at all available options to bring clarity to all interested parties".  The statement is striking in its brevity.

2022/23 has been important for the development of collective private enforcement actions for breach of competition law.  Some funding agreements will need to be revised to reflect the Supreme Court’s recent ruling.  Navigating the future landscape will require a delicate balancing exercise between proportionality, fairness and reasonable cost.

 

https://www.gov.uk/government/news/department-for-business-and-trade-statement-on-recent-supreme-court-decision-on-litigation-funding