Summary

The French Competition Authority ("FCA") has sanctioned the French National Ophthalmologists Association (Syndicat National des Ophtalmologistes de France, "SNOF") for advising its members to boycott opticians that are members of the Santéclair network. This decision makes it clear that the actions of professional associations are subject to competition rules.

In its decision of 24 March 2010, the FCA sanctioned the SNOF for encouraging its own members, but also all ophthalmologists in France, to boycott opticians belonging to the Santéclair network. This network is held by four entities which offer private health insurance products (MAAF, MMA, AGF and Ipecea) and provides services for insurance companies including (in the optics sector) the referencing of a network of opticians who commit to respect a maximum prices list.

At the end of 2003, MAAF announced that it would reimburse patients for corrective glasses purchased from opticians belonging to the Santéclair network without renewal prescription, in circumstances where the patient’s condition did not require ophthalmologist consultation. This initiative, subsequently adopted by other insurance companies using the same network, was strongly opposed by the SNOF. Through public announcements and letters, the SNOF advised its members to "avoid any professional relationship" with opticians of the Santéclair network, qualifying Santéclair’s practices as "unfriendly".

The FCA reiterated that instructions issued by professional associations constitute concerted practices within the meaning of article L. 420-1 of the French Commercial Code and may therefore be sanctioned when they have an anticompetitive object or effect, such as the eviction of a category of operators from the market.

The SNOF argued that there was no competition between ophthalmologists, opticians and the insurance companies, and, as a result, the FCA did not have the power to examine the practices at stake. However, the FCA considered that the object of the SNOF's actions was to “redirect demand on the optics market” and to fend against indirect competition that opticians could exercise against ophthalmologists. In addition, the practices investigated by the FCA could have an indirect effect on the private health insurance market; in particular, the FCA has pointed out that such practices were likely to dissuade other insurance companies from launching innovative health insurance products.

The FCA also rejected the SNOF's public health arguments. It stated that, if the SNOF considered the renewal of corrective glasses without medical examination to be contrary to the Public Health Code, it should have seized the courts or contacted the relevant public authorities. This is the position traditionally adopted by the FCA which considers that undertakings must not "take the law into their own hands" to the detriment of competition rules.

The FCA therefore ordered the SNOF to publish statements in two professional publications and imposed a fine of 50,000 euros - a significant amount considering that it represents more than 5% of the SNOF's annual resources for 2009. This decision confirms the FCA’s severe approach to this kind of practices in line with the judgement of the Paris Court of Appeal of 19 January 2010 which upheld sanctions imposed on the surgeon-dentists' association for banning the launch by Santéclair of a new partnership scheme aimed to widen health care reimbursement conditions.