Following complaints by the company "SERKO
LTD SCIENTIFIC - ELECTRONIC MACHINERY (Imports - Representations -
Service)" (hereinafter SERKO), in the market of artificial kidney
machines, ie the primary market of HD and the secondary market of the related
repair and maintenance of these machines (including spare parts), the Plenary
Session of the Hellenic Competition Commission (hereinafter HCC), with its
Decision no. 689/2019, decided unanimously that two of the defendants, namely
the companies "Gambro Lundia AB" and "Medical Products
Ltd."violated article 1 of Greek law 703/77, as in force (now article 1 of
Greek law 3959/2011), as well as article 101 TFEU through their participation
in a prohibited vertical anti-competitive agreement, which mainly consisted in
prohibiting parallel imports.
More specifically, taking into account both the
contractual terms prohibiting parallel imports as well as those prohibiting
passive sales contained in the agreement between GAMBRO and MEDICAL PRODUCTS,
which had been concluded for the period from October 2003 to December 2015, the
HCC considered that the specific clauses created an exclusive sourcing for
SERKO that was anti-competitive; SERKO, due to the abovementioned agreement
between GAMBRO and MEDICAL PRODUCTS, was obliged to buy the necessary spare
parts only by the company MEDICAL PRODUCTS, which was its main competitor in
tenders conducted by public hospitals for repair and maintenance of GAMBRO artificial
kidney equipment.
The HCC concluded that the clause prohibiting parallel
imports – the impact of which exists per se – is exacerbated
in the present case, by the contractual terms identified in certain GAMBRO
contracts with other distributors (either exclusive or not) in other Member
States (it is noted that if those terms were considered independently were not
considered problematic per se).
However, the same terms evaluated
in relation to and combination with the explicit prohibition of parallel
imports identified in above contractual agreements, they eventually acquired
anti-competitive nature for the period 2003 (Oct) – 2015, establishing a
systematic ban of parallel imports/exports for more than 10 years in the Greek
territory, having as a consequence the segmentation of the Greek market
regarding in particular the repair and maintenance of artificial kidney
machines of the GAMBRO brand.
By the same decision, the HCC unanimously
a)
obliged the companies "Gambro Lundia AB" and "Medical Products
Ltd." to put an end to the above-mentioned violation, as long as it
continues and to omit it in the future;
b) dismissed as unfounded the complaint
of SERKO against the company "BAXTER HELLAS LTD", for violation of
article 1 of law 3959/2011 for the reasons extensively referred to in
the reasoning of the decision. At the same time, the HCC ruled that the
prohibition requirements for the application of Article 101 TFEU are not met
for BAXTER and therefore there is no reason for the HCC to take further action
in this case against the specific company;
c) rejected as unfounded the
complaints of SERKO against the companies "Gambro Lundia AB",
"Medical Products Ltd." and "BAXTER HELLAS LTD" for
violation of article 2 of law 3959/2011 for the reasons extensively
referred to in the reasoning of the decision. At the same time, the HCC
ruled that the prohibition requirements for the application of Article 102 TFEU
are not met and therefore there is no reason for the HCC to take further action
in this case against the specific companies;
d) imposed a fine on the company
"Gambro Lundia AB" for the above mentioned prohibition for the period
from October 2003 to December 2015, based on the reasoning of the decision, for
violation of article 1 of law 703/77, as in force (now article 1 of Law
3959/2011), as well as Article 101 TFEU, amounting to one million one hundred
three thousand four hundred seventy-nine euro and ninety cents (1,103,479.90);
e) imposed a fine on the company “Medical Products Ltd” for the above mentioned
prohibition for the same period, based on the reasoning of the decision, for
violation of article 1 of law 703/77, as in force (now article 1 of Law
3959/2011), as well as Article 101 TFEU, amounting to one hundred sixty five
thousand eight hundred ten (165,810.00) euro; and
f) threatened each of the
aforementioned companies ("Gambro Lundia AB" and Medical Products
Ltd”) with a fine in the amount of ten thousand (10,000) euro for each day of
delay in compliance with the above decision, from the day of its publication,
ie for each day of repetition of the above violation, if found such with a new
HCC’s decision.
Source: Hellenic CompetitionCommission
