Commissie geeft boete aan Franse apothekers wegens kartelvorming (en)
The European Commission has fined the Ordre national des pharmaciens (ONP) and its governing bodies €5 millions for imposing minimum prices on the French market for clinical laboratory tests and hindering the development of groups of laboratories in this market, in violation of EU antitrust rules and provisions on restrictive business practices (Article 101 of the Treaty on the Functioning of the EU). The ONP is a professional body whose remit is to ensure that pharmacists in France comply with their professional duties1. The behaviour in question has damaged patients and the State, which have paid more for clinical tests than if competition had been allowed to develop. Since it appears that this behaviour has not yet been fully eliminated, the Commission has instructed the ONP to put a stop to it immediately.
"An association that represents and defends private interests cannot take the place of the State and issue its own rules restricting price competition in areas in which the State intended to maintain it, and hindering the development of undertakings on the market beyond what is provided for by law" said Joaquín Almunia, the Commission Vice-President in charge of competition policy. He added: "As an association of enterprises, the ONP and its members, like all economic operators, must comply with EU law."
After an in-depth investigation, the Commission concluded that the ONP's behaviour, as manifested in two types of decision, is of a kind to restrict competition in the French clinical testing market.
Since October 2003, ONP decisions have been systematically targeted at undertakings associated with groups of laboratories with the aim of impeding their development on the French market and slowing down or preventing acquisitions and statutory changes or changes in the capital of these undertakings. These practices still appear to exist.
Furthermore, between September 2004 and September 2007 the ONP took decisions aimed at imposing minimum prices, to the detriment in particular of state hospitals and state health insurance bodies, by seeking to prohibit discounts of over 10% on the public prices granted by private undertakings under contracts. It was found that during the period of the investigation the prices of clinical laboratory testing services were often up to two or three times higher in France than in other Member States.
The Commission has imposed a fine of €5 millions on the ONP and its governing bodies for the infringements found.
This case relates solely to the behaviour of the ONP. It does not concern the way in which the French market for clinical laboratory testing services is organised by the legal provisions.
The European market for clinical laboratory testing services is estimated at €25 billion, of which €4.4 billion relate to the French market alone.
Background
The investigation started with a complaint to the European Commission from the LABCO group in October 2007. The ONP was asked to send its comments on this complaint in April 2008. The Commission conducted an inspection at ONP's offices in November 2008 (see MEMO/08/706). The statement of objections was notified in October 2009 to the ONP, which submitted its arguments in writing and during the hearing that was held in February 2010.
The ONP is a professional body to which the French government has delegated the responsibility of ensuring that pharmacists comply with their professional duties. For this purpose, French law grants the ONP control powers over pharmacists, in particular the power to keep a list of all pharmacists licensed to practise. Although the decisions in question solely relate to the defence of the economic interests of the members engaged in the market for clinical laboratory tests, and although these decisions bear no relation to the public health missions delegated by the French government, the ONP systematically used or threatened to use its disciplinary powers if its instructions were not followed.
Given that members of the ONP are engaged in an economic activity and in view of the autonomy of the ONP and of its governing bodies as regards decision-making, in particular as regards the decisions in question, the ONP must be deemed to be an association of undertakings within the meaning of EU competition law.
In calculating the fines, the Commission has borne in mind the specific features of this case, particularly the fact that it is imposing a fine for the first time on an association of undertakings, raising the issue of the possible financial liability of the undertakings of members of the governing bodies, as provided for by Regulation No 1/2003.
Action for damages
Any person or firm affected by anti-competitive practices such as those described above may bring the matter before the courts of the Member States and seek damages. The case law of the Court and Council Regulation (EC) No 1/2003 both confirm that in cases before national courts, a Commission decision is binding proof that the behaviour took place and was illegal. Even though the Commission has imposed a fine on the association of undertakings concerned and its governing bodies, damages and interest may be awarded without the amount of these damages being reduced on account of the Commission fine.
The Commission considers that meritorious claims for damages and interest should be aimed at providing fair compensation to the victims of an infringement for the harm done.
For further information see:
http://ec.europa.eu/competition/antitrust/actionsdamages/documents.html
The ONP supervises both the pharmacies and the clinical laboratories. It is the laboratories that are affected by the practices in question.