Health insurers are increasingly bidding on the open-house model. Discount contracts are particularly affected. Pharmaceutical companies are — rightly — asking for legal protection. Some hints.
Open house model — what is it?
According to the now prevailing opinion, the contracting authority must make a selection decision in order for public procurement law to apply. This is lacking in open house models. Indeed, during the term of an open house procurement, the Fund undertakes to enter into a contract with each economic operator who, in turn, undertakes to provide the supplies in question on predefined terms. And this without making any further selection among the interested bidders and with the permanently existing possibility for interested companies to join the open house system during the term. And not only during an “entry phase”, as the ECJ states, but during the entire term (see ECJ, judgment of 2.6.2016, Case C‑410/14). All that is required, according to the ECJ, is a notice “enabling potentially interested economic operators to take due note of the course and essential features of an approval procedure such as that at issue in the main proceedings” (ECJ, judgment of 2.6.2016, Case C‑410/14).
Consequences for review under procurement law
The linchpin is first whether a selection decision has been made. If this is not the case, and if the contract is otherwise awarded on the basis of the open house model, the contract review authorities are unlikely to have jurisdiction.
It must be clarified whether, in the individual case, procurement is actually carried out by way of the open house model or whether the health insurance fund in question has chosen a false designation, i.e., in substance, for example, concludes a genuine framework agreement subject to procurement law, the award of which can also be reviewed by the procurement review bodies.
This will have to be discussed at least if the rebate contract is to be designed in such a way that, purely for economic reasons, it is actually only possible for a limited number of bidders to join the open house model. However, this may also be the case if bidders are simply told that they will not be admitted. In both cases, the question arises as to whether a “veiled selection decision” is not being made.
Review by other jurisdictions
Irrespective of this, it must be checked in each individual case whether the specific selection made, for example, by a physician or pharmacist, is legally sound. This can then also be controlled by the courts, if necessary in summary proceedings. Civil and/or social jurisdiction is addressed here.
There is also the question of whether licensure under the open-house model can be controlled by the civil and/or social courts. Bidding companies may have to break new ground here.
*This legal tip is not a substitute for legal advice in individual cases. By its very nature, it is incomplete, nor is it specific to your case, and it also represents a snapshot in time, as legal principles and case law change over time. It cannot and does not cover all conceivable constellations, serves entertainment and initial orientation purposes and is intended to motivate you to clarify legal issues at an early stage, but not to discourage you from doing so.