EN Official Journal of the European Union C 92/14

Final report of the Hearing Officer (1)

Case COMP/39.510 — LABCO/ONP

2011/C 92/10

1. Background

The draft decision concerns an alleged breach of Article 101 TFEU (formerly Article 81 EC) by the French Ordre National des Pharmaciens (ONP) in the market for clinical laboratory testing services. ONP is an association of pharmacists established on the basis of a French order (ordonnance) of 1945. The case results from an investigation that was opened by the Commission in response to a complaint received from LABCO SAS (LABCO), a multinational group of laboratories, on 12 October 2007. On 10 March 2008, the complaint was forwarded to the ONP, which sent its comments on 15 April 2008. Following a preliminary investigation, unannounced inspections were carried out on 12 and 13 November 2008 at the premises of ONP and a laboratory.

2. Written and oral procedures

Further to LABCO's complaint, a Statement of Objections (SO) dated 19 October 2009 was notified to ONP and three of its organs, namely the National Council of ONP (CNOP), Section G of ONP, and the Central Council of Section G (CCG). In the SO, the Commission came to the preliminary conclusion that ONP had engaged in anti-competitive behaviour by adopting decisions pursuing two objectives: firstly, maintaining the high level of prices by means of minimum price fixing, and secondly, preventing groups of laboratories from taking over other laboratories.

ONP was originally granted eight weeks to reply to the SO. ONP requested an extension to this deadline, which I partially granted (an additional one week, to 11 January 2010) in light of the Christmas holiday period. ONP replied to the SO within this extended deadline.

ONP was granted access to the Commission file, by way of CD-ROM/DVD, on 27 October 2009.

In addition, ONP exercised its right to be heard in an Oral Hearing, which took place on 10 February 2010 and lasted half a day. LABCO, the complainant, also participated in this Oral Hearing. No third party attended the Oral Hearing. The Ordre National de Médicins had requested to be admitted as an interested third party; however, I rejected this request on the basis that it had not demonstrated a sufficient interest to be heard within the meaning of Article 13 of Regulation (EC) No 773/2004.

The proceedings raised two issues that merit attention. Firstly, it is the first case in which an association has been exposed to the imposition of a fine in application of Article 23 of Regulation (EC) No 1/2003. It follows that, in view of Article 23(4) of this Regulation, the members of ONP could be called upon to cover the amount of any fine imposed. To ensure that ONP's members were put on notice as to this possibility, I advised that ONP should inform each member about the Commission's proceedings, and the fact that they could apply to be heard in application of Article 13 of Regulation (EC) No 773/2004. I understand that this has been done.

Secondly, the inspection decisions in this case were the subject of two applications for annulment filed with the General Court (2). On 26 October 2010, the General Court rejected the application filed by the CNOP and CCG. Had the General Court upheld CNOP and CCG's appeal, this could potentially have had an impact on the evidence on which the Commission could rely to find that ONP had infringed EU competition rules in the present case. However, given that the appeal was rejected by the General Court, in my view the rights of defence in this regard have not been breached.

3. The draft decision

The draft decision, which is addressed to all the addressees of the SO except for Section G of ONP, essentially retains the objections set out in the SO. In my view, the draft decision deals only with objections in respect of which the party has been afforded the opportunity of making known its views.

In the light of the above observations, I consider that the right to be heard has been respected in this case.

Brussels, 3 December 2010. Michael ALBERS

(1) Pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21.

(2) Cases T-23/09 CNOP and CCG v Commission and T-24/09 Biocaps v Commission, both filed on 21 January 2009. The application for annulment in Case T-24/09 was rejected by the General Court on 16 June 2010 on the basis that it manifestly lacked any foundation.