Action brought on 18 February 2011 - ONP and Others v Commission

(Case T-90/11)

Language of the case: French

Parties

Applicants: Ordre national des pharmaciens (ONP) (Paris, France), Conseil national de l'Ordre des pharmaciens (CNOP) (Paris), Conseil central de la section G de l'Ordre national des pharmaciens (CCG) (Paris) (represented by: O. Saumon, L. Defalque and T. Bontinck, lawyers)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul Decision C (2010) 8952 final of the European Commission of 8 December 2010, which was notified to the applicants on 10 December 2010, relating to a proceeding under Article 101 of the Treaty on the Functioning of the European Union (Case 39510 - LABCO/ONP);

in the alternative, assuming that certain heads of claim are proved, reduce the fine of EUR 5 000 000 imposed on the applicants by the European Commission for infringement of Article 101 TFEU taking into account the extenuating circumstances which exist and the specific nature of the association of undertakings in question;

in any event, order the European Commission to pay all the costs in accordance with Article 87(2) of the Rules of Procedure of the General Court of the European Union.

Pleas in law and main arguments

In support of the action, the applicant relies on nine pleas in law.

1.    First plea in law, alleging an error of interpretation and application of Article 101 TFEU in so far as the Commission took the view that the exception set out in Wouters ¹ does not apply to the present case.

As regards the restrictions on the development of groups of laboratories on the French market for clinical laboratory tests:

2.    Second plea in law, alleging an error of law due to an error of assessment of the scope of the French legislation as regards the respective roles of the prefect and of the Conseil central de la section G de l'Ordre des pharmaciens (Central council of Section G of the Association of pharmacists) ('the CCG') during changes which took place vis-à-vis the running of a société d'exercice libéral (company or firm formed by persons practising a profession).

3.    Third plea in law, alleging a failure to take account of the scope of the obligation to inform, under Articles L 4221-19, L 6221-4 and L-6221-5 of the Code de la santé publique (Public Health Code) and a circular of 22 September 1998, in so far as the Commission failed to have regard to the role of the CCG in the context of its ex post inspection of the company documents relating to sociétés d'exercice libéral operating as laboratories for clinical laboratory tests and also disregarded the obligation to submit observations to the prefect.

4.    Fourth plea in law, alleging failure to take account of the role of the CCG as guarantor of the professional independence of the practising member, in so far as the Commission supported the idea that the practising member should have the lowest possible share in the capital of sociétés d'exercice libéral resulting in the loss of his economic independence and decision-making autonomy.

5.    Fifth plea in law, alleging an error of assessment of the legislature's intention as regards the transfer of shares above a ceiling of 25% and failure to take account of the legal framework applicable to the transfer of shares in sociétés d'exercice liberal.

6.    Sixth plea in law, alleging that the Commission erred in the interpretation and application of Article 101 TFEU by taking into consideration, in the contested decision, the disciplinary sanctions imposed in so far as they exacerbate the possible or actual effects of the decisions criticised.

As regards the imposition of minimum prices on the French market for clinical laboratory tests:

7.    Seventh plea in law, alleging that the Commission exceeded the limits of the inspection decision ² by seizing documents relating to 'prices', which has the consequence that the items of evidence gathered on that basis were illegally gathered and, consequently, the claim relating to the minimum prices must be regarded as unsubstantiated.

If, quod non, the evidence concerning the minimum prices could legitimately be seized by the Commission in the course of its inspection:

8.    Eighth plea in law, alleging an error of assessment in respect of the scope of the former Article L 6211-6 of the Code de la santé publique and of the legislature's intention as regards the definition and practice of discounts.

9.    Ninth plea in law, alleging an error of assessment of the facts resulting in an error of law as the Commission took the view, first, that the ONP's conduct relating to the discounts does not fall within the scope of its statutory tasks but reflects its anti-competitive objectives and, secondly, that the ONP consistently, in order to protect the interests of small laboratories, attempted to impose a minimum price on the market for clinical laboratory testing services.

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¹ - Case C-309/99 Wouters and Others [2002] ECR I-1577.

² - Commission Inspection Decision C(2008) 6494 of 29 October 2008 ordering the applicants to submit to an inspection pursuant to Article 20(4) of Council Regulation Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 101 TFEU and 102 TFEU is the subject-matter of Case T-23/09 CNOP and CCG v Commission (OJ 2009 C 55, p. 49)