EN Official Journal of the European Union C 92/16

Summary of Commission Decision

of 8 December 2010

relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU)

(Case COMP/39.510 — LABCO/ONP)

(notified under document C(2010) 8952)

(Only the French text is authentic)

(Text with EEA relevance)

2011/C 92/11

On 8 December 2010, the Commission adopted a decision relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (TFEU). In accordance with the provisions of Article 30 of Council Regulation (EC) No 1/2003 (1), the Commission herewith publishes the names of the parties and the main content of the decision, including any penalties imposed, having regard to the legitimate interest of undertakings in the protection of their business secrets. A non-confidential version of the decision is available on the website of the Directorate-General for Competition at the following address:

http://ec.europa.eu/competition/antitrust/cases/

1. INTRODUCTION

(1) The Decision finds that the Ordre national des pharmaciens (National Pharmaceutical Society) or (ONP) and its decision-making bodies, the Conseil national de l’Ordre des pharmaciens (National Council) and the Conseil central de la Section G (Central Council of Section G), by taking decisions having as their object the imposition of minimum prices in the French market for clinical laboratory tests and restricting access by groups of laboratories to that market, have infringed Article 101(1) of the Treaty on the Functioning of the European Union.

2. CASE DESCRIPTION

2.1. Procedure

(2) On 12 October 2007, the Commission received a complaint against the ONP lodged by LABCO (2). On 19 October 2009, the Commission opened the procedure and adopted a statement of objections, which was notified to the parties on 20 October 2009. The ONP exercised its right to be heard during a hearing which took place on 10 February 2010. The Hearing Officer's final report was adopted on 3 December 2010. The Advisory Committee on Restrictive Practices and Dominant Positions issued a favourable opinion on the preliminary draft decision on 22 November 2010 and on the amount of the fine on 3 December 2010. The decision was adopted by the Commission on 8 December 2010.

2.2. Summary of the infringement

(3) The behaviour which is the subject of this investigation consists of all of the decisions of the ONP aimed at imposing a minimum price in the French market for clinical laboratory tests and at preventing groups of laboratories from developing in that market.

(4) The documents gathered during the investigation indicate that between 2004 and 2008, the ONP tried with growing insistence to impose a minimum market price. With a view to imposing a minimum market price, the ONP sent letters to a very large number of laboratories which, as the law obliged them to do, had given notice of contracts for cooperation with other laboratories or hospitals, where the contracts involved rebates deemed by the ONP to be too large. In all these letters, the ONP refers explicitly to the Code of Ethics and hence threatens to have recourse to its disciplinary powers. In several cases, the ONP even copied its letters to the decentralised state services in an attempt to give more weight and the semblance of legality to its demands.

(5) Systematically tracking down professional partnerships belonging to groups of laboratories, the ONP took, between 14 October 2003 and at least until the notification of the statement of objections on 21 October 2009, a great many decisions aimed at preventing laboratory groups from developing in the market for clinical laboratory tests. These decisions are of four types: i decisions aimed at prohibiting the stripping of shares in professional partnerships; ii decisions aimed at ensuring that share movements are immediately notified to the ONP; iii decisions aimed at ensuring that biochemist pharmacists hold a minimum equity stake; and iv decisions aimed at ensuring that any amendment of the statutes or directorial appointment has the prior approval of the ONP.

(6) Insofar as the ONP uses or threatens to have recourse to its disciplinary powers, the decisions of the ONP at issue take effect as part of the exercise of regulatory powers over market operators delegated by the State to the ONP for the performance of its tasks. However, the case file shows that these decisions only have the appearance of decisions enforcing compliance with ethical rules because where the ONP relies on ethical rules to justify its decisions, it is in order to obtain the interpretation which is most favourable to its anti - competitive objectives and which differs systematically from the official interpretation by the French State, and often from that of its own departments.

3. DECISION

(7) By taking decisions having as their objective the imposition of minimum prices in the French market for clinical laboratory tests and the restriction of access to that market by groups of laboratories, the Ordre national des pharmaciens and its decision-making bodies, the Conseil national de l’Ordre des pharmaciens and the Conseil central de la Section G, have infringed Article 101(1) of the Treaty on the Functioning of the European Union.

(8) The Ordre national des pharmaciens and its decision-making bodies are ordered to immediately bring to an end the above infringement and to refrain from repeating any act or conduct having the same or similar object or effect.

(9) For the infringement in question, a fine of EUR 5 million is hereby imposed jointly and severally on the Ordre national des pharmaciens, the Conseil national de l’Ordre des pharmaciens, and the Conseil central de la Section G de l’Ordre des pharmaciens.

(1) OJ L 1, 4.1.2003, p. 1.

(2) LABCO is a European group of clinical laboratories present especially in France and Spain, but also active in the German, Italian and other markets.