Friday, 27 July 2012 00:00

Decision 545/2012

Ex-officio ordering of interim measures in the market for infant milk, pursuant to article 25 paragraph 5 of Law 3959/2011, against the Pharmacists Association of Achaia (hereinafter: PAA), the Pharmacists Union of Achaia and Islands (hereinafter: PUAI), Panagiota Karousos-Akrivi Asprogeraka PLC, pharmaceutical warehouse in Western Greece (hereinafter: AKNOPHARM S.A.) and Apostolaki E. Efthimia General Partnership, pharmaceutical warehouse in Western Greece (hereinafter: Apostolaki GP).

Decision 545/2012
File (PDF) Decision 545/2012
Date of Issuance of Decision

July 27th, 2012

Issue Number of Government Bulletin
Relevant Market

Infant milk (infant formulae)

Subject of the Decision

Anti-competitive agreements, Abuse of a Dominant Position

Legal Framework

Article 25 par. 5 L. 3959/2011

Operative part of the Decision

Ordering of interim measures

Complainant(s)

Ex-officio investigation

Company(ies) concerned

1. Pharmacists Association of Achaia

2. Pharmacists Union of Achaia and Islands (PUAI)

3. Panagiota Karousos-Akrivi Asprogeraka PLC (AKNOPHARM S.A.)

4. Apostolaki E. Efthimia G.P.

Summary of Decision

In January 2012, the provision of art. 2 par. 2 of JMDΥ1 / Γ.Π.47815, according to which infant formulae were exclusively sold in pharmacies, was abolished. On March 29, 2012, the Pharmacists Association of Achaia (hereinafter: P.A.A.) published a Press Release with the notification of the decision of its Ordinary General Assembly meeting of 28.3.2012 to the Panhellenic Pharmaceutical Association (hereinafter: P.P.A.). According to the press release, the P.A.A. General Assembly unanimously decided that the infant formulae of the companies FRIESLAND (Frisolac), NESTLE (Nan), CANA (Native, Guigoz), HOCHDORF Nutritec (BIOLAC), together with their follow-on formulae, would not be sold by the Association’s pharmacies, because the economic behavior of companies towards pharmacies was such that it should either be reported to the Hellenic Competition Commission, since it allowed for zero profit margins to the average pharmacy of the Association. Additionally, the Association’s General Assembly decided to supervise the infant products of NOUMIL (Aptamil, Almiron) and PFIZER (S-26), with regard to the maintenance of the current commercial policy which allows pharmacies to compete with supermarkets on an equal basis.

In this context, the Directorate-General for Competition initiated an ex-officio investigation, carrying out an on-site inspection (dawn-raid) and submitting a Statement of Objections to the Hellenic Competition Commission concerning the ordering of interim measures against the Pharmacists Association of Achaia, with a view to revoking the Decision of the said Association. 

The Hellenic Competition Committee unanimously decided, in Plenary, that the above decision of the General Assembly of the Pharmacists Association of Achaia, which was adopted because the specific companies, active in the distribution of infant formulae, decided to distribute their products also through the supermarkets’ channel, constitutes a decision of an association of undertakings that has an anti-competitive effect, namely aiming at coordinating the behavior of its members in terms of restricting and controlling the placing on the market of infant formulae. The Commission also considered that three of the pharmaceutical warehouses agreed with the PAA to coordinate their business activities in order to boycott the producers of infant formulae, who decided to supply their warehouses with their products. In addition, it considered that, despite the voluntary compliance of pharmacists and pharmaceutical warehouses with the above Statement of Objections of the Directorate-General for Competition, the conditions for ordering interim measures against them were met and therefore, ordered the parties, as part of the adoption of interim measures aimed at safeguarding the competitive market structure, to refrain from adopting similar practices in the future (decision-making, conclusion of agreements and / or concerted practices in the context of agreeing to collectively avoid / exclude orders or, vice versa, of collectively favoring orders from certain suppliers, and similarly on agreeing to the collective acceptance or non-acceptance of returns) and threatened them with a fine where failure to comply with the decision persists, until the issue of the final HCC decision on the main proceedings. It is noted that the above addressing of pharmacists’ anti-competitive behavior, as a sanction, is independent of any Decision of the Ministry of Health.

Judicial Means Appeal.
Decisions by the Court of Appeal of Athens (Administrative Division)  ACAA 2/2014 , Council of the State 4192/2015
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