French dental surgeons fined for collective boycott

On 12 November 2020, the French competition authority (the "FCA") fined the National Council of the College of Dental Surgeons (the "National Council"), five departmental councils of the College and two trade unions for collectively boycotting dental care networks.

In France, private complementary health insurers reimburse the costs of dental care that is not covered by national health insurance.  To limit these costs, private health insurers form dental care networks by entering into agreements with dental surgeons and/or their trade unions.  Under these arrangements, dental surgeons agree to limit their fees in exchange for better reimbursement for their clients by insurers. 

Dental care networks have been known to provoke discontent from some parts of the dental profession, which fear the commodification of dental services.  Against this background, the FCA has sanctioned two anti-competitive practices that were established with a view to discourage the conclusion of dental care networks:

• First, the FCA sanctioned the National Council, five departmental councils of the College and a trade union for having agreed on actions to boycott dental care networks. According to the FCA, these actions mainly consisted of: a campaign designed to encourage dental surgeons to file a complaint against colleagues who were part of dental care networks; and communications suggesting inter alia that dental care networks are in breach of rules on professional ethics, sometimes specifying that entering into a dental care network can give rise to disciplinary sanctions.
  
  The National Council was sentenced to a fine of EUR 3 million (the maximum fine available under French law for an infringer that is not an undertaking).
• Secondly, the FCA sanctioned another trade union for a separate infringement involving calling upon practitioners and patients, through communications and pressure on potential partners, to turn away from dental care networks on the grounds that they endanger the profession. The trade union was fined EUR 680,000.

Comment

This is not the first time that the dental profession has been under scrutiny by the FCA.  The National Council has been sanctioned for anti-competitive practices in breach of competition law on two separate occasions.

This case yet again raises the question as to where the line should be drawn between, on the one hand, the legitimate actions by associations and trade unions to protect the interests of their profession and, on the other hand, boycott actions that give rise to concerns under competition law.

With thanks to Alexandre Marescaux of Ashurst for his contribution.