On 19 June 2017, the Competition College (Mededingingscollege/Collège de la concurrence) of the Belgian Competition Authority (Belgische Mededingingsautoriteit/ Autorité belge de la Concurrence) (BCA) rejected the request of Medicare-Market SA ("Medicare-Market") for interim measures against the Order of Pharmacists (Orde der Apothekers/Ordre des Pharmaciens).
Medicare-Market essentially complained that, together with several pharmacists, the Order of Pharmacists was thwarting the commercial policy of Medicare-Market and harassing it with a view to driving it out of the market. Medicare-Market noted, inter alia, a collective complaint of several pharmacists accusing Medicare-Market of not respecting "fixed prices." According to Medicare-Market, the Order of Pharmacists also sued Medicare-Market for offering discounts, imposed disciplinary sanctions against a pharmacist forming part of the Medicare-Market chain for causing "confusion" between pharmacies and supermarkets, pressured a pharmacist of Medicare-Market for not having the same opening hours as "traditional" pharmacists and organised a slander campaign against Medicare-Market.
The Competition College of the BCA first made it clear that, in order to be successful, a request for interim measures must satisfy two conditions: (i) there must be prima facie indications of an infringement of the competition rules; and (ii) the adoption of interim measures must be urgent in order to avoid a prejudice to the applicant that would be serious, imminent and difficult to repair, or in order to prevent harm to the general economic interest.
The Competition College first considered that there are prima facie indications that bodies of the Order of Pharmacists may have infringed Article IV.1 of the Code of Economic Law (Wetboek van Economisch Recht/Code de droit économique) and the equivalent provision under EU Law, Article 101 of the Treaty on the Functioning of the European Union (TFEU). The Order of Pharmacists may have violated competition law when combatting the discount policy of Medicare-Market, its opening hours and the organisation of its pharmacy and parapharmacy activities. The Competition College also noted that the Order of Pharmacists seemed eager to extend its statutory monopoly over pharmacies to adjacent activities, which might constitute an abuse of dominance contrary to Article IV.2 of the Code of Economic Law and to Articles 102 and 106 TFEU.
However, the Competition College observed that Medicare-Market had been able to continue its operations in spite of these practices. As a result, the Competition College found that it was not established that Medicare-Market suffered a prejudice that is serious, imminent and difficult to repair, or that the general economic interest required the adoption of interim measures. As a result, the Competition College rejected Medicare-Market's request for interim measures.
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