Warning to the National Association of General Practitioners

May 22, 2015

 

The Competition and Consumer Protection Commission (the ‘Commission’) today wrote to the National Association of General Practitioners (NAGP) expressing its grave concerns that the recent conduct of the NAGP amounts to an ongoing and escalating campaign designed to encourage its members to engage in a collective boycott of the Under-6s Contract contrary to EU and Irish competition law.

The Commission is further advising that any individual GP in Ireland who engages in the exchange of information with competitor GPs regarding their future intentions in relation to the Under-6s Contract risks acting outside of Irish and European competition law.

Some commentators have suggested that a recent judgement of the EU Court of Justice, the “Dutch Orchestra” case has created a precedent exempting certain classes of self-employed individuals from competition law.  In fact, in the Commission’s view, the judgment restates very clearly the long-established position that competition law applies to self-employed individuals such as GPs.  The judgment also acknowledged that nominally self-employed individuals who are, in reality, employees are not subject to competition law; but GPs operating under the GMS (General Medical Services) do not fall into this category.

Ms. Isolde Goggin, Chair of the Commission said: “the Commission has today written to the NAGP to advise them that their actions risk contravening competition law.

Under competition law, GPs are classified as businesses, and when businesses get together to agree the terms and conditions under which they are prepared to supply a service, invariably consumers suffer. The Commission will continue to use all the powers at its disposal to protect consumers from anticompetitive practices such as the ones being pursued by the NAGP, but also within any sector and at any level in the economy.

The Commission will continue to closely monitor developments and we will, if necessary, take action to stop specific anticompetitive conduct of the NAGP and its members”.

 

Notes to Editor

Background to the letter issued to Mr. Chris Goodey, CEO of the NAGP.

1. In July 2013 the Competition Authority initiated proceedings against the Irish Medical Organisation (IMO) following the IMO’s refusal to rescind a decision to withdraw certain patient services in protest at proposed Government cuts to fees paid to GPs under the General Medical Services (GMS) contract. At the heart of the Competition Authority’s case was the role that the IMO, as a body representing groups of self-employed professions, was and was not allowed to do when negotiating with the State on the terms of the contract.

2. In May 2014, the IMO provided undertakings to the High Court:

a. not to organise or recommend the collective withdrawal of services or boycotts by its members; and,

b. to advise its members that they should decide individually and not collectively whether to participate in publicly funded GP health services on such terms as are offered by the Minister for Health.

3. The High Court undertakings formed part of a settlement agreement reached between the Competition Authority and the IMO. The settlement agreement clarified key aspects of the Authority’s position regarding the relationship between the IMO and the Department of Health/HSE relating to discussions on publicly funded GP health contracts and in particular, emphasised that the Minister/State must make the final decision on contract terms and conditions, including the fees which it is prepared to offer.

4. Since then, the IMO has been engaged in a process with the Department of Health/HSE on a new publicly funded GP health contract, the Under-6s Contract. In the Commission’s view, the process contains safeguards which are necessary to ensure that competition law is not breached and that patients and taxpayers are protected from threat of collective action by self-employed GPs. On April 28th the HSE published the Under-6s Contract. The IMO supports the Under-6s Contract.

5. The National Association of GPs is another representative body for GPs. It does not support the Under-6s Contract and has been engaged in a campaign to encourage its members to engage in a collective boycott of the Under-6s Contract.

6. Note that Section 4 of the Competition Act 2002 and Article 101 of the Treaty on the Functioning of the European Union prohibit agreements among undertakings that have the object or effect of restricting or distorting competition. The Commission considers that these competition law prohibitions apply to self-employed GPs. The Commission further considers that an agreement to take collective action or any subsequent collective action on foot of such agreement breaches Section 4 and/or Article 101 of the Treaty.

Competition and Consumer Protection Commission

The Competition and Consumer Protection Commission was formed on 31 October 2014 following the amalgamation of the Competition Authority and the National Consumer Agency. On that day the Competition and Consumer Protection Act 2014 came in to force. The Commission has a dual mandate to enforce competition and consumer protection law and we will: protect and strengthen competition, empower consumers to make informed decisions and protect them from harmful business practices.

 

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