On 26 October 2007, the Belgian Competition Council decided that the Body of Pharmacists (the Body) had infringed the competition rules by adopting and enforcing rules that restricted pharmacists’ liberty in relation to their opening and closing hours, publicity and rebates. In 2005, the Competition Prosecutors launched an investigation following the receipt of several complaints in 1998. The complaints were made by pharmacists that had been disciplinarily sanctioned for not abiding by the rules in relation to opening and closing hours as set by the Body or by local groupings of pharmacies.
During the course of the investigation the Competition Prosecutor decided to extend his investigation to the prohibitions set by the Body in relation to publicity and rebates. Further to the parties’ challenge of this extension, the Council ruled that nothing restricts the Competition Prosecutor from extending the object of his investigation. In his position as protector of the general interest and free competition on the Belgian market he is not bound by the scope of complaints. Neither should he motivate such an extension.
The affected product market was defined as the market for services supplied by pharmacists who are subject to the control of the Body (with the exception of hospital pharmacies, pharmacies making analysis on biological samples and military pharmacies). The geographic market was considered to be local with regard to the rules set by the local groupings and national with regard to the rules set by the Body. Furthermore, the Council held that the rules set by the Body could not potentially affect trade between Member States, hence Article 81 EC did not apply in this case.
Based on Belgian Supreme Court and European case law, the Council qualified pharmacists as undertakings. The Body was classified as an association of undertakings and its rules as decisions of an association of undertakings. In its substantive analysis of the Body’s rules, the Council took into account the link between the organisation of an emergency service, which responds to a social objective of continuity of medical treatment, and restrictions in relation to opening hours. By virtue of the restrictions imposed, non respect of the hours determined by the majority of pharmacists located in the same region (which is the procedure as prescribed by rules set by the Body) was considered to be a deontological breach. In this respect, the Council ruled that a restriction on daily opening hours was not proportionate nor necessary and inherent to a good functioning of the emergency service. The Council added that freedom in relation to opening hours is important to enable pharmacists to compete in an already heavily regulated market. However, the Council held that restrictions in relation to opening hours during the night and on Sundays could be considered as necessary for the good functioning of the emergency service. Rules in relation to opening hours set by local groupings were not taken into account as they did not have an appreciable effect on a substantial part of the Belgian market.
As far as the prohibition on advertising and rebates are concerned, the Council ruled that, taking into account the high degree of regulation in the sector, these prohibitions have as their object the restriction of competition.
The Council considered it inappropriate to impose a fine because the investigation had been excessively long and went beyond the reasonable time period foreseen in Article 6 of the ECHR. Nevertheless, taking into account the restrictive nature of the rules imposed by the Body, the Council obliged it to publish the Council’s decision on its website and to inform all of its members in writing.