On 4th September 2014, the Italian Competition Authority (“ICA”) imposed a € 831,816 fine on the Italian association named “FNOMCEO” (acronym for “Federazione Nazionale degli Ordini dei Medici Chirurghi e degli Odontoiatri”) which represents and coordinates all Italian professional associations of surgeons and dentists, for infringements of Article 2 TFUE, the prohibition against anti-competitive agreements.
The investigation started after the FNOMCEO’s approval in 2006 (renewed in 2014) of the medical Code of Ethics (the “Code”) which provides rules that surgeons and dentists must observe in the course of their professional duties.
The ICA tried to assess whether professionals (surgeons and dentists in the case at stake) could be considered as undertakings from a competition law perspective. The ICA found that according to established case-law, professionals carry out an independent economic activity and therefore can be qualify as undertakings. Therefore the FNOMCEO can be considered as an association of undertakings and the Code as an agreement made by an association of undertakings.
Further, the ICA focused its attention on some provisions of the Code prohibiting surgeons and dentist from using advertising tools for their business. The concern was that this prohibition would unduly restrict free competition amongst them.
The ICA came to the above position by pointing out that promotional and comparative advertising are two important means that can and should be used by surgeons and dentists to promote their own businesses.
The ICA supported its decision by quoting the European Commission’s Report on Competition in Professional Services delivered in 2004 where it is stated at Para 45 that “There is however an increasing body of empirical evidence which highlights the potentially negative effects of some advertising restrictions. This research suggests that advertising restrictions may under certain circumstances increase the fees for professional services without having a positive effect on the quality of those services. The implication of these findings is that advertising restrictions as such do not, necessarily, provide an appropriate response to asymmetry of information in professional services. Conversely, truthful and objective advertising may actually help consumers to overcome the asymmetry and to make more informed purchasing decisions.”
Furthermore, The ICA held that there are no objective reasons to limit free advertising and that this does not run counter the professional integrity and dignity as argued by the FNOMCEO.
Finally, the ICA found that the Code may prejudice trade among Member states as it is applicable to all the Italian territory which is an important part of the European Union market.