Minister reconsiders profit distribution possibilities for healthcare providers and role of private equity in the Dutch healthcare sector

Various parties have expressed criticism over the past year regarding the Wibz (this Decision Memorandum refers to criticism from the House of Representatives, regulators and the healthcare sector in general),  particularly concerning provisions on profit distribution and the targeting of certain investors, notably private equity parties. Concerns have also been raised about the feasibility, the degree of interference with providers’ freedom, and the administrative burden.

The Council of State recently issued a ruling on the current profit distribution ban (see our earlier blog), which has created uncertainty regarding the applicability and enforceability of the ban, as it has not been applied coherently and consistently by the Minister of VWS. The Wibz may enable a more coherent and consistent approach.

Assessing per type of care or delivery form whether profit distribution should be permitted, requiring consistent reasoning and substantiation.  

Lifting the current ban in combination with measures to prevent excesses.

An outright ban on profit distribution for healthcare providers, which exceeds the scope of the Wibz.

According to the Minister, a possible approach to excluding private equity is to further restrict undesirable risky behaviours, such as excessive profits and lack of continuity. By focusing regulation on behaviours deemed risky by the Minister, rather than on “the identity of the party exhibiting the behaviour (presumably referring to the nature of the healthcare provider or its investor)”, the regulation is more targeted at solving the problem. What the Minister considers risky behaviour remains unclear for now.

The Wibz already contains rules on profit distribution, and the Minister intends to tighten these further. This includes tightening the profit distribution ban, introducing a maximum percentage for profit distribution, additional recovery options for the NZa, a minimum term of sustainable continuity for profit distribution, and amendments to the Wtza licence.

This measure, in the form of a prohibition for healthcare providers to enter into agreements with private equity parties, is considered by the Minister to be legally unsustainable; the measure infringes on the contractual freedom of parties and the free movement provisions of EU law. This option also poses significant risks to the continuity and accessibility of healthcare and youth care.

For the sake of completeness, we note that due to political developments (the caretaker status of the cabinet, changes in government officials), the fact that 380 questions have been asked in response to the text of the legislative proposal and the reconsideration announced in this recent letter to parliament, the memorandum in response to the report (nota naar inleading van het verslag) on the Wibz is still pending. This parliamentary memorandum answers the questions and comments of Members of Parliament, clarifies the content, intention and consequences of the legislative proposal, and may explain any amendments or additions.

Previously, we concluded that it would be logical (1) to abolish the arbitrary distinction between intramural and extramural care in relation to profit distribution, and thus (2) to abandon a statutory ban on profit motive for providers of intramural care (also to prevent unnecessarily contrived subcontracting constructions), and (3) to regulate profit distribution only in subsectors where ‘excesses’ occur, provided that the conditions introduced for subsectors are necessary and demonstrably proportionate. We consider it likely that option 2 would withstand judicial scrutiny under EU law, whereas a sectoral distinction (option 1) or total ban (option 3) would raise objections. Option 2 minimises the risk of the Netherlands being reprimanded again in Brussels.

Option 1: Sectoral distinction

Regarding the options introduced by the Minister for tightening the profit distribution ban, option 1 aligns most closely with the status quo, but justification for the historical (but current) distinction between intramural and extramural care providers is still lacking. A legitimate risk signalled by the Minister is that distinctions between different subsectors make the system less coherent and consistent. This is also evident from the recent ruling from the Council of State, and is particularly problematic if there is no sound justification for such a distinction. In the proceedings, the Minister failed to convince the Council of State of the justification. The Council of State confirmed that compelling reasons of general interest (quality, accessibility) can justify a profit ban, provided the measure is coherent and proportionate. Option 1 involves a sectoral distinction, which may not qualify as coherent, but is less intrusive than a total ban (option 3) – however, option 2 also limits ‘excesses’ (in a coherent manner) without excluding all capital (proportionality). This argues in favour of option 2: lifting the profit distribution ban but introducing additional conditions for profit distribution.

Option 2: Regulated profit distribution

Option 2 aligns most closely with the current version of the Wibz, which already introduces conditions for profit distribution for healthcare providers. Introducing stricter measures to prevent ‘excesses’, such as “a cap on profit distributions, a minimum term for profit distribution, and tightening the conditions for profit distributions (e.g., a ban on risky financing structures)” must, as the Minister notes, be based on sound justification. Provided this requirement is met, option 2 creates a level playing field for healthcare providers and investors, takes concerns from the sector into account, and addresses the urgent need for investments in healthcare.

In 2014, the House of Representatives adopted the Act to Increase Investment Opportunities in Medical Specialist Care (Wet vergroten investeringsmogelijkheden medisch-specialistische zorg, VIMSZ). That Act (which ultimately did not enter into force) provided for controlled profit distribution for hospitals and independent treatment centres, with conditions (including a three-year waiting period and quality assessment). Option 2 builds on this idea of regulated profit distribution. It shows that the legislator has previously judged that limited profit distribution is legally defensible and offers advantages for quality and financing.

The recent Wennink Report of 12 December 2025 emphasises that the Netherlands must invest heavily to maintain public services. Option 2 aligns therewith: it attracts private capital for innovation and scaling up, without “public healthcare funds leaking away” to ‘excessive’ profits. Option 2 could also address the concerns of the Dutch Association for Hospitals (Nederlandse Vereniging voor Ziekenhuizen, NVZ) about an uneven playing field between hospitals and independent treatment centres (zelfstandige behandel centra, zbc’s).

Option 3: Total ban 

A total ban on profit distribution, option 3, sounds clear-cut but would not only entail a system change but also faces fundamental legal objections and risks (claims for damages). As the Minister seeks an approach that is consistent with European legal frameworks and can count on support from the House of Representatives, we do not consider option 3 opportune from a strictly legal perspective. We also see as a risk that this option would narrow the playing field, as only non-profit models would remain possible. This option affects access to the capital market for healthcare providers and completely inhibits investment in innovation and capacity. This option is at odds with the urgency expressed in the Wennink Report and could paradoxically harm the quality, accessibility, and affordability of healthcare. It is also questionable to what extent this option is politically realistic; prior to sending this letter, the Ministry was always open to regulated profit distribution in healthcare, seeking a compromise between two extremes in the debate.

The Minister appears to favour an approach that regulates behaviour rather than banning investors.

In the letter, the Minister addresses further tightening of rules “to limit the negative consequences of private equity in healthcare.” In view of the findings of the EY report from April 2024, we believe that caution is warranted in tightening specific rules for private equity in healthcare, as there is no evidence of demonstrably negative effects (see our earlier blog). The Minister, partly referring to the EY report, does not appear to intend to seriously pursue option 2 (excluding private equity) given the legal unsustainability of that option.

Choosing to restrict risky behaviour rather than excluding private equity in general also offers a societal middle ground. The NVZ’s position paper called for a level playing field and the prevention of profit leakage. With generic profit rules from the Wibz (see above, Option 2), this is achieved, as all healthcare providers will have to meet the same standards. At the same time, this approach responds to the Association of Dutch Healthcare Insurers’ (Zorgverzekeraars Nederland, ZN) call to tackle especially undesirable business models (such as deliberately working without contracts for high margins), rather than excluding investors in advance. The association of independent treatment centres (Branchevereniging voor Zelfstandige Klinieken, ZKN) has also warned not to throw the baby out with the bathwater: private investors contribute to innovation and capacity. By sanctioning bad practices but not excluding good capital, this approach takes these different perspectives into account.

The Minister is expected to investigate in the coming months to what extent the measures proposed with the Wibz can be further tightened to better exclude risky behaviours in general. The possible consequences for the accessibility, affordability, and continuity of care, as well as legal sustainability, feasibility, and enforceability, will be points of attention.