Médicaments, meilleur coût ou proximité : il faut choisir

Sources - FlickR Creative Commons - Pre-root canal meds par vieux banditPar décision n°09-D-17 du 22 avril 2009, relative à des pratiques mises en œuvre par le conseil régional de l’Ordre des pharmaciens de Basse-Normandie, l’Autorité de la concurrence, née de la transformation en 2009 du Conseil de la concurrence, a sanctionné ledit ordre pour avoir incité une maison de retraite à s’adresser aux pharmacies les plus proches de son implantation pour son approvisionnement.

Au plan procédural, l’Autorité rappelle, pour rejeter l’exception d’incompétence au profit de la juridiction administrative que le conseil régional de l’Ordre a cru devoir soulever, qu’il est de jurisprudence constante que lorsqu’un ordre professionnel sort de sa mission de service public en donnant une interprétation de la législation applicable à son activité, il intervient dans une activité de services relevant du champ de compétence du Conseil de la concurrence.

A l’appui de ces considérations, l’Autorité cite les décisions n°98-D-73 du 25 novembre 1998 relative à une saisine et à une demande de mesures conservatoires présentées par l’Union nationale patronale des prothésistes dentaires, n°97-D-18 du 18 mars 1997, relative à des pratiques relevées dans le secteur du portage de médicaments à domicile, n°05-D-43 du 20 juillet 2005, relative à des pratiques mises en œuvre par le conseil départemental de l’Ordre national des chirurgiens-dentistes du Puy-de-Dôme et le Conseil national de l’Ordre des chirurgiens-dentistes, et enfin n°07-D-41 du 28 novembre 2007 relative à des pratiques s’opposant à la liberté des prix des services proposés aux établissements de santé à l’occasion d’appels d’offres en matière d’examens anatomo-cyto-pathologiques.

Sur le fond, l’Autorité a considéré que le fait d’inciter la maison de retraite à s’adresser aux pharmacies les plus proches de son implantation avait empêché la recherche légitime, par celle-ci, de produits et de services pharmaceutiques au meilleur coût par la mise en concurrence de plusieurs pharmacies.

Si l’Autorité a estimé que la pratique de la répartition du marché était grave, elle a considéré qu’elle l’était d’autant plus au regard du fait qu’elle émanait d’une autorité à laquelle a été confiée une mission de service public.

En conséquence, elle a infligé une amende de 5.000 euros et a prononcé une injonction de publication.


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