Belgian Competition Authority Imposes Second Fine on Professional Organisation of Pharmacists in Less Than Six Months
On 15 October 2019, the Belgian Competition Authority (“BCA”) again took formal steps against the professional organisation of pharmacists (“Orde der Apothekers”/ “Ordre des pharmaciens”) (the “PO”) (see, attached press release of 16 October 2019).
In a first decision, the BCA imposed a fine of EUR 225,000 on PO. This sanction comes less than six months after that same body was in May 2019 at the receiving end of another fine of EUR 1 million on account of exclusionary measures thwarting the development of MediCare-Market (see, Van Bael & Bellis Life Science Newsflashes of 5 June 2019 and 24 June 2019).
This time, the BCA found that several provisions of the PO’s Code of Ethics and two of its communications unduly restricted the ability of pharmacists to advertise their business and non-pharmaceutical products, both online and offline.
In its current version, the Code of Ethics forbids any “solicitation” of patients. The BCA found this to be “almost identical” to a ban on advertising. The BCA also took issue with two PO communications of 2014 and 2017 prohibiting pharmacists from using Google AdWords or social media to advertise their products. Although the advertising of medicines is regulated in Belgium, no such regulation applies to non-pharmaceutical products. These provisions of the Code and these two communications therefore had as their very object the restriction of competition. Interestingly, the BCA specified that “it did not have any objections concerning medicines” as advertising prescription medicines to end users is forbidden by law and advertising over the counter medicines is strictly regulated.
Compared to its May 2019 decision, the BCA imposed a modest fine of EUR 225,000. The BCA only fined the PO for its communications preventing pharmacists from using Google AdWords or social media to advertise non-pharmaceutical products, not for the infringements included in the Code of Ethics. Having regard to the principle that decisions must be adopted within a reasonable time, the BCA explained that the infringements included in the Code of Ethics had been investigated since 2010 and should therefore not give rise to a fine. As a result, the fine was based on the sole turnover of pharmacists for their online sales of non-pharmaceutical products. Moreover, since the PO accepted to settle the case, it obtained a 10% reduction of the fine in exchange for its acknowledgment of the infringement and its waiver of the right to appeal this decision.
The PO also offered commitments to the BCA, which were mentioned as a reason for the BCA not to impose any fine for the infringements included in the Code of Ethics. These commitments were examined by the BCA in a separate decision.
In this second decision, the BCA decided to close the investigation partially without imposing a fine after PO offered to (i) adopt a new Code of Ethics allowing advertising and the solicitation of patients, also through paying referencing services and social media, by the end of 2019; (ii) adopt a commented version of the Code of Ethics complementing the Code of Ethics on advertising and commercial practices, which should notably distinguish between medicines and other products, by the end of 2019; (iii) review the commented version of the Code of Ethics on a regular basis with regard to the decisional practice of disciplinary bodies of the PO and to assess the need to review the Code of Ethics at least every five years; and (iv) make accessible to members on its website an anonymised version of the disciplinary decisions adopted pursuant to the provisions of the new Code of Ethics. The BCA considered that these commitments were sufficient to remedy the flaws which it had identified and therefore made them binding on the PO.
Contrary to the settlement procedure followed in the context of the first decision, when the BCA closes a case further to commitments received from the parties, it does not reach any final decision on the existence of an infringement. As a result, while the infringements contained in the first decision are now considered established, the BCA’s preliminary objections included in the second decision are not confirmed. In the second decision, the BCA blamed the PO for allowing disciplinary bodies to use specific provisions of its Code of Ethics as a basis for sanctioning pharmacists not only for their advertising activities, but also for offering significant rebates to patients. The BCA’s initial view was that this restriction on rebates amounted to “indirectly imposing a minimum price” for both medicines and non-pharmaceutical products sold in pharmacies. Since the BCA decided to accept the PO’s commitments, it did not take a final view on the merits of these initial objections.
Remarkably, the BCA only “partially” closed the investigation further to the commitments offered by the PO. This seems to imply that the BCA is still investigating certain practices of the PO. It cannot therefore be ruled out that the BCA should adopt yet another decision regarding the PO in the coming months or years.
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