Thursday, July 30, 2009
Posted by D. Daniel Sokol
Francisco Marcos of Instituto de Empresa Business School (and a judge of the Tribunal de Defensa de la Competencia de la Comunidad de Madrid) asks Can the State Infringe the Competition Laws When Sourcing Goods or Hiring Services in the Market?
ABSTRACT: The application of antitrust law to State actors is a controversial issue in competition laws worldwide. The resolution commented in this paper analyzes an specific case regarding the sourcing of pharmaceuticals and other medical products by health regional authorities in Castilla-La Mancha. In its resolution the Spanish National Competition Commission (NCC) makes some relevant assertions on the application of antitrust prohibitions to State actions.
Although the principles inspiring the final decision by the NCC could broadly be shared, the resolution makes some problematic contentions, particularly regarding EU competition Law. Additionally, the resolution makes a mistaken description of the factual background of the anticompetitive conducts investigated, blurring an adequate understanding of the behaviour of the regional health service, the council of the professional associations, the professional associations and the pharmacies of Castilla-La Mancha, and that affects the final modest outcome (condemnation without sanction).
Finally, the inappropriate construction of the anticompetitive conducts contained in the resolution gives way to a radical, but erroneous, dissenting opinion, expressing a view drastically opposed to the majority resolution, questioning the application of antitrust laws to regional health authorities in Castilla-La Mancha when they resort to the market to source their medical products needs.
This Comment claims an alternative construction of the anticompetitive conducts examined by the resolution, providing different evaluation of the conducts of the regional health service, the council of the professional associations, the professional associations and the pharmacies of Castilla-La Mancha. Moreover, following the wrong path taken by the resolution and the dissenting opinion, this Comment will tackle the general antitrust law framework in which state powers’ actions and decisions should be analyzed - specifically, when rendering social and health related services - reviewing the recent European case law on this topic.