While the coalition agreement of 9 April 2025 between the CDU/CSU and the SPD announced the introduction of legislation regulating investor-backed ambulatory healthcare centres (“iMVZ”), it did not specify what that regulation might entail. After the ECJ’s judgment of 19 December 2024 (Case C-295/23, Halmer Rechtsanwaltsgesellschaft) found Germany’s ban on third-party ownership of law firms to be in line with European law, proponents of curbing investor activities in SHI-accredited outpatient healthcare consider the judgment to vindicate their long-held calls for a similar ban. However, the ECJ judgment cannot be applied to investor-backed ambulatory healthcare centres.
Rights of non-doctors to establish ambulatory healthcare centres; pending restrictions
It has been possible for capital investors to establish or invest in SHI-accredited ambulatory healthcare centres by acquiring existing, already-registered hospitals since 2004. Although both the Statutory Health Insurance Care Structure Act (GKV-Versorgungsstrukturgesetz) of 2011 and the Appointment Service and Healthcare Supply Act (Terminservice- und Versorgungsgesetz) of 2019 have already imposed restrictions on who can establish such centres (see our article from 20 March 2019, “TSVG and its Impact on Strategic Investors”), discussion of additional restrictions has continued beyond what has been legislated. On 16 June 2023, the Federal Council (Bundesrat) called for the introduction of regulations to:
- Limit the authority of hospitals to establish ambulatory healthcare centres to planning areas within a geographical radius of up to 50 km of the hospital
- Limit the coverage share of all the ambulatory healthcare centres established by a single organisation in each planning area to a maximum of 25% for primary care and 50% per specialisation for primary specialist care and secondary specialist care
ECJ judgment on the prohibition of third-party ownership of law firms not applicable to investor-backed ambulatory healthcare centres
The ECJ justified its decision to confirm the ban on third-party ownership of law firms with the argument that this is a legitimate means of safeguarding the independence of lawyers and protecting client interests. Member States have discretion, it said, when assessing and predicting whether the core characteristics of the legal profession may be jeopardised by investor participation.
Unsurprisingly, that has reignited the debate over curbing investor-backed ambulatory healthcare centres, with some arguing that the judgment shows that European law does not prevent such restriction. Given the fundamentally different context, however, the ECJ’s considerations regarding third-party ownership of law firms cannot be applied to restricting (indirect) third-party ownership of ambulatory healthcare centres, which has been permitted for over 20 years. The conditions for lawfully restricting freedom of establishment and free movement of capital – both of which would be affected – are not met:
- Member States have considerably less room for manoeuvre when introducing subsequent restrictions on fundamental freedoms: ECJ case law imposes significantly stricter requirements for subsequent restrictions on previously authorised activities. It is not sufficient for Member States to simply assert that an interest or good recognised as deserving protection is at risk or that such risk is conceivable. The assumption must instead be supported by reliable facts and figures and valid empirical data.
- Risks to the interest or good must be demonstrable: In other words, it is much easier for Member States not to open a market to certain participants from the outset than to close it again after more than 20 years of authorised participation or to restrict previously existing opportunities to operate. Such a step would only be justified if there were objectively verifiable data or scientific evidence enabling the Member State to demonstrate that investor involvement in ambulatory care poses a risk to an interest or good recognised as deserving protection (e.g. the quality of care or the financial stability of statutory health insurance). No such risk has not been proven to date, however.
Constitutional assessment
The position under European law is consistent with the outcome of a constitutional assessment. A move to now restrict the activities of ambulatory healthcare centres would be incompatible with the freedom to choose a profession under Article 12(1) Basic Law (Grundgesetz, “GG”).
- There is much to suggest that the prohibitions called for by the Bundesrat are objective regulations on admission to a profession. These are only permitted where there are demonstrable or highly probable risks to a paramount public interest. Like the ECJ, the German Federal Constitutional Court generally grants the German legislature a degree of discretion in assessing and anticipating future developments. Similarly, the principle that potential risks alone – without evidence of actual risks – to a paramount public interest are insufficient to justify interference through subsequent restrictions is consistent with its case law. The considerations regarding freedom of establishment are therefore applicable to Article 12(1) GG.
- This outcome would remain unchanged even if the restrictions proposed by the Bundesrat were considered subjective rules for choosing a profession because there is no demonstrable threat to a paramount public interest in this respect either.
Conclusion
The ECJ ruling of 19 December 2024 on the lawfulness of the ban on third-party ownership of law firms does not apply to restricting the rights of investors to establish ambulatory healthcare centres. The Bundesrat’s call for restrictions on the activities of ambulatory healthcare centres operated by hospitals would not be permissible under European law or the German constitution and therefore cannot be part of the ambulatory healthcare centre legislation announced in the coalition agreement.
A detailed discussion of the legal situation can be found in our recently published article (available in German only) entitled “Freibrief für Einschränkungen der MVZ-Gründungsberechtigung durch das EuGH-Urteil zum Fremdbesitzverbot an Rechtsanwaltsgesellschaften?“
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