Actas de Derecho Industrial y Derecho de Autor, Vol. 29, pp. 839-866, 2009
15 Pages Posted: 11 Jul 2009 Last revised: 5 Jan 2011
Date Written: July 10, 2009
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.
Keywords: Public administration, state powers, antitrust, pharmacy; professional associations, public procurement, pharmaceutical service, anti-competitive conduct
JEL Classification: I18, L43, L44
Suggested Citation: Suggested Citation
Marcos, Francisco, Can the State Infringe the Competition Laws When Sourcing Goods or Hiring Services in the Market? Spanish National Competition Resolution of 14th April 2009, Pharmaceuticals Professional Association of Castilla-La Mancha (in Spanish, "¿Pueden las Administraciones Públicas infringir el Derecho de la competencia cuando adquieren bienes o contratan servicios en el mercado?") (July 10, 2009). Actas de Derecho Industrial y Derecho de Autor, Vol. 29, pp. 839-866, 2009. Available at SSRN: https://ssrn.com/abstract=1432440