Discriminatory Conduct vs. Members Protection

1. Introduction
On November 27, 2013, the Secretary of Domestic Trade of the Ministry of Economy and Public Finance (“SCI”) issued Resolution SCI No. 133 (the “Resolution”), that included Opinion No. 798, by which it imposed on Asociación Civil Círculo Médico de San Pedro (the “Association”) a fine for anticompetitive conducts of AR$ 150,000.

2. Analysis
The claim was filed before the Antitrust Commission by Lino Ricardo Luri (the “Claimant”), a beneficiary of medical services provided by Organización de Servicios Directos para Empresarios (hereinafter “OSDE,” its acronym in Spanish,). The Claimant stated that the Association is an entity that negotiates agreements with different Health Insurance Administrators, and that intermediates in the payment of its members’ fees.
In fact, the Claimant said that on March 25, 2004 the Board of Directors of the Association issued a resolution ordering all its members to stop providing services to those beneficiaries affiliated to OSDE, within the scope of the City of San Pedro, Province of Buenos Aires.
Since that date, in the City of San Pedro, doctors that were members of the Association interrupted the attention given to patients affiliated to OSDE, as well as performing clinical studies and practices by members of the Association. Thus, OSDE patients within the City of San Pedro could only use their prepaid coverage with those doctors who were not members of the Association, through a reimbursement system or by traveling to other neighboring locations.
The Association appeared before the Antitrust Commission and explained that:

1. It is a civil non-profit association, that includes all doctors of the City of San Pedro, in the Province of Buenos Aires and that has as main goals, among others, to encourage solidarity between its members, to facilitate professional development in its area of influence and to improve doctor-patient relations. 
   
2. That the Association did not forbid its members from providing attention to OSDE affiliates, but only established that these beneficiaries should use the reimbursement system. The Association added that OSDE improperly exercised its dominant market position, fixing the price of professional fees and deciding which professionals should or should not be enrolled on their roll, trying to obtain an advantage by not accepting doctors that were members of the Association. 
   

On August 9, 2005, the Antitrust Commission issued a preventive measure against the Association so as to “allow its members to freely contract with any Health Insurance Administrator, without generating any type of sanction and/or exclusion from the Asociación Círculo Médico de San Pedro (San Pedro Medical Association) nor of its participation in the agreements executed by that entity”
Although the preventive measure was appealed by the Association, due to Section 35 of Law No. 25.156 (Antitrust Law), the remedy was awarded without a stay of execution, and thus the Association had to comply with the preventive measure.
The appeal was filed before the Court of Appeals of the City of Rosario, which revoked the Resolution issued by the Antitrust Commission. The National Government filed an extraordinary appeal, which was granted and the docket was sent to the Supreme Court of Justice. Notwithstanding, the Supreme Court of Justice declared it was unnecessary to rule in the case because, due to the manner in which the appeal had been granted, the Association had complied with the preventive measure of the Antitrust Commission allowing its members to engage in contracts with OSDE.
Due to the Supreme Court’s ruling, the Association requested the suspension of the investigation by the Antitrust Commission, arguing that the conduct had ceased and the procedure had become irrelevant. The Antitrust Commission rejected the request and continued the procedure.
In 2010, the Claimant alleged a new relevant fact, stating that the Association had issued a new rule, through which it had decided to create a new category of members, to include doctors who were not members of the Association under the category of “Invoicing Doctors”. At the time of providing explanations before the Antitrust Commission, the Association expressed that the new relevant fact was not related to the original conduct and that the “rule was no longer used”.

3. Conclusion
Once the investigation was finished, the SCI issued a Resolution ordering the Association:

1. to cease prohibiting its members from contracting directly with the health insurance administrators that did not have an agreement with that entity, as per Section 46, sub-section a) of Law No. 25,156;
   
2. to cease establishing discriminatory conditions against those doctors who were not members of the Association; and
   
3. it also imposed a fine of AR$ 150,000 on the Association.
   

After an extended and in depth analysis, the Antitrust Commission decided that the acts carried out by the Association were harmful: (i) to its members; (ii) to health insurance administrators; (iii) made difficult the insertion of new professionals; (iv) affected the beneficiaries of health insurance and prepaid health insurance of San Pedro; (v) affected OSDE beneficiaries; and (vi) affected the clarity and transparency of prices of medical services.
On December 23, 2013, the Association paid the fine that had been imposed due to harmful conducts against the general economic interest.