Thursday, 16 March 2017 14:11

Decision 643/2017

Decision on the ex-officio investigation in the field of materials and preparations related to kidney diseases, for possible violation of Articles 1 and 2 of the Greek Competition Act 3959/2011 on "Protection of free competition" (and / or Articles 1 and 2 of Law. 703/1977, as in force) and / or Articles 101 and 102 of the Treaty on the Functioning of the European Union (T.F.E.E.).

Decision 643/2017
File (PDF) Decision 643/2017
Date of Publication of Decision March 16th 2017
Issue Number of Government Bulletin  
Relevant Market Artificial Kidney Filters
Proceedings Collusion
Legal Framework Article 1 of the Greek Competition Act 3959/2011
Decision Finding no infringement
Complainant Ex officio investigation
Respondent

1. PANHELLENIC ASSOCIATION OF SUPPLIERS OF ARTIFICIAL KIDNEY & RELATED MATERIALS

2. MEDIPRIME S.A.

3. DEMO S.A.

4. ARITI S.A.

5. VERMA DRUGS S.A.

6.  DOCTUM PHARMASEUTICAL S.A. – K.GIOKARIS & Co S.A.

7. DIOPHAR S.A.

8. Μ. ΚΟΝΤΟΜITROU & Co  G.P.

9. HEALTH WAY L.L.C.

10. MEDICAL PRODUCTS L.L.C.

11. DIAL S.A.

12. DIAMENTICA S.A.

13. NEPHROTECH S.A.

14. NEPHRODYNAMIC HELLAS S.A.

15. ARTLIFE S.A.

16. M.S. ΙΑΚOVIDIS HELLAS S.A.

17. EVANGELOS ZEKKAS-LEONIDAS HATZIANTONIOU & CO L.P.

18. ANGELINI PHARMA HELLAS S.A. and ANGELINI FINANZIARIA S.P.A. jointly and severally

19. G. ΚREXIS & Son S.A.

20. HOSPAL HELLAS L.t.d and GAMBRO ΑΒ jointly and severally

21. NOVO M.D. S.A.

22. ERGO MEDICAL SUPPLY S.A.
Summary of Decision

The Plenary of the Hellenic Competition Commission, in the context of an ex-officio investigation in the field of materials and preparations related to kidney diseases, decided in an open vote by majority the following:

It does not find any violation of Article 1 of the Greek Law 703/1977, as it was in force, (now Article 1 of the Greek Competition Act 3959/2011) and does not impose a fine on the aforementioned companies.

The Competition Commission considered by  majority that the action of the PASPYTEN Association during the examined period (from November to December 2012) moved strictly within the limits of its institutional role, which had been recognized in this case by the State itself. The companies under examination claimed that the PASPYTEN meetings in question did not concern the coordination of the members' pricing policy or the refusal to sell to the hospitals.

The overall assessment of the evidence, for the period in question (November - December 2012), does not provide sufficient, accurate and convergent evidence to show that the conduct in question had as its object or effect the restriction of competition within the meaning of Articles 1 of the Greek Competition Act 3959/2011 and 101 TFEU, and therefore cannot be sufficiently substantiated by law violation of these national and union provisions. More specifically:

  • It does not appear in the minutes of the General Meeting of 21.11.2012, nor in the letter of PASPYTEN to the EPY (Committe for Healthcare supplies), nor can it be deduced from any other information in the file, possible agreement or consultation (not even a report) on the alleged harmonization of prices, on the specific amount of offers / discounts provided or on the acceptance or not of the new prices of the Observatory by the companies under examination.
  • For the period in question in 2012, no evidence emerged indicating any (systematic or non-systematic) exchange of information between the participating companies regarding the direct or indirect formation of the final prices for artificial kidney filters and / or their pricing policy in general. The Commission did not find any (systematic or not) exchange of information on possible discounts or finally offered prices during the executive tenders (call-offs) of the Framework Agreement. There is, therefore, no evidence that would call into question the autonomy of each company-member of the Association in shaping its pricing policy.
  • Taking into accont the overall interpretation and assessment of the practices of PASPYTEN, the aforementioned development of the tender process EPY 3/2010 and the consequent actions of EPY in order to reduce the cost of supply of artificial kidney filters, the Commission concludes that the conduct in question did not ultimately have as its object the direct or indirect coordination of the prices for the supply of artificial kidney filters within the meaning of the prohibition provisions of the law.
On the basis of the overall evaluation of the evidence regarding the behavior of the companies under examination, taking into account in particular its content, as well as the actual (economic and legal) framework in which it is included, the Commission did not find sufficient, accurate and convergent evidence that  the conduct in question had as its object or effect the restriction of competition within the meaning of Articles 1 of the Greek Law 3959/2011 and 101 TFEU. Therefore it cannot be sufficiently established by law that such conduct had, or could have the object to restrict competition. 
Judicial Means Final. Decision has not been appealed.
Decisions by the Court of Appeal of Athens(Administrative Division) -
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