On 17 November 2010, the College of Prosecutors of the Competition Council (the College) dismissed Oxycure’s complaint against Belgian producers of medical oxygen.
Oxycure, an undertaking active in the production, sale, purchase and distribution of medicines, intended to start delivering medical air for patients who had undergone a medical procedure, at their homes. Oxycure would initially source its medical air from other suppliers, but ultimately intended to produce its own medical air once established. Medical air producers refused to supply Oxcure, who claimed this was the result of concerted practices.
The College investigated Oxycure’s complaint, basing its market analysis on the European Commission’s and other national competition authorities’ case law, which distinguishes between treatment at home and treatment in hospital, and on the basis of the kind of gas and type of delivery. On the facts, the College observed that there was indeed parallel behaviour in that several producers refused to supply Oxycure. However, it came to the conclusion that the suppliers each had valid motives to refuse to supply: bad previous experiences with Oxycure; the fact that Oxycure did not hold a licence; because their distribution network was already at capacity; or because Oxycure had never formally requested supply. The College considered that these reasons were each justifiable grounds for refusal, and therefore excluded the existence of concerted practices. Oxycure’s complaint was declared unfounded as a result.
On 5 February 2009, the Liège Court of Appeals ruled otherwise, and considered the suppliers’ refusal a concerted practice in violation of Article 2 of the BCA (for a summary of that judgment see ACT - Belgian Competition and Regulatory Report: Issue 24 January 2009– March 2009)