The Belgian competition authority imposes cartel fines on the professional association of Belgian pharmacists for a second time in 6 months for anticompetitive practices aimed at discouraging online advertisements and rebates.
After having received a fine of 1 million euro in May 2019 (Click here to read more), for anti-competitive behavior against a new chain of pharmacists combining online sales and pharmaceutical and para-pharmaceutical shops, the professional association of Belgian pharmacists (Orde der Apothekers – Ordre des Pharmaciens) was fined again, on 16 October 2019, for a different competition law infringement. The latter fine amounts to 225.000 euro.
During the period of 2010-2017, numerous complaints on disciplinary sanctions imposed by the professional association were filed with the Belgian competition authority (BCA). These complaints came mostly from pharmacists that used search engines and social media to reach out to customers.
According to these complaints, the professional association made it impossible to continue their normal commercial activities by imposing disciplinary sanctions on them, based on their disciplinary code.
Disciplinary sanctions were imposed by the association, for e.g. the breach of provisions of the disciplinary code relating to the prohibition of advertising for certain pharmaceuticals and the use of online advertisement services, such as search engine advertising. In addition, the association aimed to discourage the use of rebates by pharmacists.
The investigation by the BCA showed that these disciplinary measures amounted to infringements of competition law and a fine was therefore imposed on the professional association by the BCA.
The fine is the result of a settlement procedure between the professional association and the BCA. In return for an admission of guilt with regard to the competition law infringements, the professional association received a 10% fine reduction. The BCA makes very frequent use of the settlement procedure in cartel cases.
In addition the BCA received the commitment from the association that it will review its disciplinary code and bodies, by the end of 2019, in order to align their decision-making practice with competition rules. In addition, a new code for publicity and commercial activities of pharmacists will be adopted. This new code, that will supplement and help interpret the disciplinary code, must be evaluated at least every five years and if necessary, be adapted to the (rapidly) changing economic environment.
Three lessons to take away from this case:
- Disciplinary sanctions may constitute antitrust infringements. Actions aimed at curtailing online sales or online advertisements are heavily scrutinized by the competition authority.
- Professional associations should aim to strike a balance with their disciplinary codes and take competition law constraints and new market developments into account.
- These decisions demonstrate, together with the recent dawn raids at hospitals and pharmaceutical companies, that the pharma and healthcare sector is very high on the BCA’s enforcement agenda.