On 16 October 2019, the Belgian Competition Authority ("BCA") fined the national Order of Pharmacists €225,000 for taking disciplinary measures limiting the ability of pharmacists to advertise and apply rebates to parapharmaceutical products.
| what you need to know - key takeaways |
- The BCA's decision was prompted by various complaints from pharmacies and has to be read in light of a parallel decision taken earlier this year by which the BCA imposed a fine on the Order of Pharmacists for having obstructed MediCare-Market's commercial activity.
- In this case, the settlement procedure was followed and led the Order of Pharmacists to commit to adapt its Code of Ethics in a way to no longer restrict advertising with regard to parapharmaceuticals and make sure that disciplinary measures are not taken with regard to pro-competitive behaviour.
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Between 2010 and 2017, the Investigation and Prosecution Service of the BCA received various complaints from pharmacies, some of which have an online presence, concerning both the rules of the Code of Ethics in relation to the advertising and the granting of rebates and the application of these rules by the Order of Pharmacists.
The complainants argued that both the rules of the Code of Ethics and the disciplinary measures adopted on the basis of these rules were preventing them from pursuing their commercial activity in a normal way.
In its decision of 15 October 2019, the BCA found that the Order of Pharmacists breached Article IV.1 of the Belgian Code of Economic Law and Article 101 TFEU by adopting, maintaining and implementing provisions of the Code of Ethics prohibiting certain types of advertising practices, in particular online advertisement practices, for parapharmaceutical products.
The BCA concluded that such provisions limited the pharmacists' ability to advertise and to apply rebates for parapharmaceutical products.
The BCA followed the settlement procedure, which implies an admission of guilt by the Order of Pharmacists. In addition, the Order of Pharmacists committed to adopt, by the end of 2019:
- a revised Code of Ethics which provides for the approval in principle of advertising and commercial practices allowing for paid referencing and advertising via social media; and
- an explanatory code on advertising and commercial practices to complete and facilitate the interpretation of the provisions of the revised Code of Ethics.
This case confirms once again that competition law fully applies to liberal professions such as pharmacists and that ethical rules cannot be used to restrict competition to the detriment of consumers.
With thanks to Camille Ammeloot of Ashurst for her contribution
