In 2010 the European Commission imposed a €5 million fine on the French National Order of Pharmacists (ONP) for restricting competition on the biomedical analysis market. ONP prevented groups of laboratories from growing due to measures seeking to restrict holdings in their capital and imposed a minimum price for analysis services by prohibiting them from granting discounts of more than 10%.
ONP challenged this decision by arguing that the penalties were exempt from competition law, as its activities were those of a public authority and thereby justified by the protection of public health. All of the measures for which ONP was reproached allegedly sought to ensure that the law regulating shareholdings and discounts was respected. The General Court of the European Union dismissed this argument. It considered that ONP has no regulatory powers and that the authority of member states to restrict to the freedom of establishment in the name of protecting public health does not authorise private bodies or associations of undertakings to infringe competition regulations by imposing restrictions that the state does not provide for, or by interpreting the law in an extensive manner.
With respect to the fine – which ONP had requested be symbolic – the court responded that the fact that ONP did not seek to make a profit did not mean that it did not benefit a number of private interests. Moreover, a change in legislation which subsequently prohibited discounts should not reduce penalties concerning past behaviour and which seek to dissuade against future infringements. Nevertheless, the court agreed to reduce the fine by a small amount, due to the commission's failure to take full account of a circular which influenced the practices for which ONP was criticised. The fine was reduced to €4.75 million.
Emmanuelle van den Broucke and Sara Pomar
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