Competition Committee: Fine of 2,096 euros to the Pharmaceutical Association of Karditsa

The Plenary Session of the Competition Commission with its 722/2020 unanimous decision, finds, after a pharmacy complaint, that the Pharmaceutical Association of Karditsa (FSK) violated article 1 of law 3959/2011, through practices (beyond the legal) setting of hours operation of the pharmacy of Karditsa from November 2011 to December 2013.

EA imposed on the FSK a fine for the execution of the established, based on the reasoning of the Decision, violation of article 1 of law 3959/2011 amounting to 2,096.83 euros.

Record

On 14.02.2013 the company – PHARMACY based in the prefecture of Karditsa, submitted to the Service a complaint against (a) of the KSF, for violation of article 1 of law 3959/2011 “as in force, and / or article 101 of the Treaty for Operation of the European Union (hereinafter TFEU) and (b) of the Supply Cooperative of Pharmacists of Karditsa Prefecture (SYFAK), for violation of articles 1 and 2 of law 3959/2011 and / or articles 101 and 102 of the TFEU , in the market of medicines and other pharmaceutical and para-pharmaceutical products and mainly in the retail and wholesale markets of these products.

In order to investigate the above complaint, on 03.04.2013 an on-site inspection was carried out by the General Directorate of Competition (GDA) at the offices of FSK and SYFAK in the city of Karditsa, while from SFAK, FSK and the complainant respectively, additional requests were requested. information on the present complaint. Furthermore, GDA sent letters of information – questionnaires to twenty eight (28) drug stores in Trikala, Thessaloniki, Larissa, Volos, Arta, Agrinio and Athens, which are active in the market of marketing / distribution of drugs and other pharmaceutical and para-pharmaceutical products. as well as in fourteen (14) pharmacies in the Prefecture of Karditsa, non-members of SYFAK.

The complaint and subsequent investigation of the GDA concerned a coordinated tactic of the FSK against the pharmacy of the complainant company in order to discourage it and prevent it from operating during the then extended extended hours of the pharmacies. This tactic according to the complainants was implemented through:

– the decision-making (BoD / GA), in addition to the legal responsibilities, of the FSK and the imposition of a death penalty by the relevant Disciplinary Board,

– the change of the working hours and consequently the extended hours without a good reason and the non-listing of the complainant’s pharmacy in the on-call list for a specific period of time, despite the relevant applications for inclusion in the extended hours,

– relevant publications in the newspapers and on the internet, interviews on television networks, but also the sending of messages on the mobile phones of the members of the FSC, and

– the submission of more than 15 lawsuits against her, as well as requests for the imposition of sanctions against the complainant by various bodies.

It also concerned the suspension of the complainant’s pharmacy during extended hours on Tuesdays and Thursdays (from March 2012 to 18.05.2012), due to the imposition of a death penalty by the Disciplinary Board.

As a result, the FSK effectively prevented, in the end, the implementation of the extended hours by pharmacies of Karditsa that they wished during the years 2011,2012 and 2013.

With regard to SYFAK, the complaint concerned an alleged abuse of a dominant position by refusing to sell drugs during the operation of the complainant’s pharmacy during extended hours, a schedule which the FSK considered illegal, fully in line with the FSK.

Relevant market

The delimitation of the market is not a crucial element for the establishment or not of the violation of article 1 of law 3959/2011. In the present case, the relevant market is defined as the market for the provision of services by pharmacists in the Prefecture of Karditsa, and in any case, in the judgment of the Commission, the further delimitation of the relevant product market is unnecessary. Regarding the evaluation of the case in the light of article 2 of law 3959/2011, and specifically for the determination of the possession or non-dominant position of SYFAK, the relevant market is defined as that of the wholesale sale and distribution of pharmaceutical and parapharmaceutical products in the prefectures of Karditsa and Trikala.

Legal assessment

The provision of Article 101 TFEU does not apply to this decision, as no influence on intra-Union trade can be substantiated.

As for the FSK

According to the decision of the EA, pharmacists, as freelancers, engage in economic activity (distribution of drugs and “para-pharmaceutical” products) in return for taking on the financial risks that this entails and their financial activity is autonomous. Consequently, pharmacists constitute “companies” within the meaning of article 1 par. 1 of law 3959/2011.

FSK is the professional association of pharmacists active in the prefecture of Karditsa. According to the reasoning of the decision, in the sense of competition under the law of the company and therefore also in the scope of application of the competition rules, the associations of companies and especially the pharmaceutical associations fall, as long as it serves the financial commercial interests of its members. Therefore, in this case, the FSK constitutes in this case an “association of companies”, within the meaning of article 1 of law 3959/2011.

In her decision. EA checked whether, in the exercise of its so-called regulatory competence, its management had complied with public interest criteria set by law and was subject to substantive state control over the exercise of that competence in order to determine whether the controlled practice actually falls within the scope of regulatory competence and not the rules of competition. A professional body acts as an association of companies for the purposes of article 1 of Law 3959/2011 when it establishes a regulation that concerns the business (financial) behavior of its members. According to the decision, there is no substantial and systematic state control of the decision-making power in the last instance, especially for the decisions of the General Assembly. and the Board of the FSK. The no. 121 and 122 decisions of the FSK in combination and mainly independently the no. 122, fall within the meaning of the decision of the association of enterprises in the light of article 1 of law 3959/2011.

In this case, the decision-making of the members of the PSC was an anti-competitive practice, which prevented potential competitors of the pharmacists on duty to operate during extended hours. This decision sought to deactivate the system of optional on-call time (extended hours), which, during the critical period, has been fully linked to on-call time. As a means of achievement, the modification of the (compulsory) on-call hours was used, and in particular the extension of their time to a degree that made it difficult for the interested pharmacists to be included in the extended hours. The 24-hour on-call period introduced by the decision led to the physical exhaustion of the pharmacists on duty. Especially if these pharmacies do not have suitable staff (many pharmacists per pharmacy), they would rather discourage other pharmacists from participating voluntarily by joining the on-call system, as they would have to be on duty 24 hours a day. In addition, this regulation circumvented the legally established distinction of overnight stays and overnight stays (total – partial), and in each case actually catalyzes the legislative purpose of extending the schedule.

In conclusion, the FSC has taken a decision to influence the parameters of competition in the relevant market and therefore a decision, which is restrictive and sufficiently capable, due to its nature, to restrict and distort competition, so that the assessment of the occurrence of real restrictive effect on the market in question.

As for SYFAK

With regard to SYFAK, the decision in principle concluded that, taking into account the particular characteristics and all the relevant circumstances of the present case, assessed as a whole and in combination, it is not possible to substantiate in the present case SYFAK’s dominant position in the relevant and geographical market . In any case, the denial of supply alleged by the complainant is not considered capable of excluding it from the market in which it operates, ie in the next stage of drug marketing in relation to the one in which SYFAK operates. The complainant was in any case able to cover her supplies, during the usual supply hours (daily mornings) and to maintain a stock of products for use during extended hours. In addition, and mainly, as demonstrated by the hearing, the complainant had easy access to alternative sources of supply and therefore no abuse of a dominant position was found.

Fine / Penalties

EA found that the KSF violated article 1 of law 3959/2011, according to the reasoning of the decision, for the period from 26.11.2011 to 18.12.2013 and imposes a fine for the violation found in the above reasoning Article 1 of Law 3959/2011, amounting to two thousand ninety-six euros and eighty-three cents (2,096.83 €), taking into account the legal limit of 10% of the total gross income of the FSK of the year in which the violation ended .

EA also imposes the following conditions on the KSF:

i. to send the press release that EA will issue regarding its decision to its members, as well as to the members, pharmaceutical associations of the Panhellenic Pharmaceutical Association, within forty-five (45) days from the issuance of the said bulletin, submitting to EA the relevant proof of shipment,

iι. to post on its website and, if it does not have its own website, on the website of the Municipality of Karditsa and the Regional Unit of Karditsa, for one (1) year the above press release, within twenty (20) days from its issuance.

Finally, the EA rejected the complaint regarding that part that is directed against SYFAK according to article 1 and article 2 of law 3959/2011.